REPUBLIC
OF KENYA IN THE SUPREME COURT OF KENYA AT NAIROBI (Coram: W.M. Mutunga,
Chief Justice and President of the Supreme Court; P.K. Tunoi; M.K.
Ibrahim; J.B. Ojwang; S.C. Wanjala; N.S. Ndungu, SCJJ.) PETITION NO. 5
OF 2013
-BETWEEN-
RAILA ODINGA
..................................................................PETITIONER
-AND-
1. THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION
2. AHMED
ISSACK HASSAN
3. UHURU KENYATTA
4. WILLIAM SAMOEI RUTO
.................RESPONDENTS AS CONSOLIDATED WITH PETITION NO. 3 OF 2013
-BETWEEN- 1. MOSES KIARIE KURIA 2.DENIS NJUE ITUMBI 3. FLORENCE
JEMATIAH SERGON ........................PETITIONERS
-AND-
1. AHMED
ISSACK HASSAN .....................RESPONDENTS
2. THE INDEPENDENT
ELECTORAL AND BOUNDARIES COMMISSION
AND AS CONSOLIDATED WITH PETITION
NO. 4 OF 2013 -
BETWEEN- 1. GLADWELL WATHONI OTIENO 2. ZAHID RAJAN............................PETITIONERS 1 -AND-
1. AHMED ISSACK HASSAN
2. THE INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION
3. UHURU KENYATTA
4. WILLIAM SAMOEI RUTO .....................RESPONDENTS
JUDGMENT A. THE
PRESIDENTIAL ELECTION OF 4TH MARCH, 2013:
INTRODUCTION
[1] On the 4th of March, 2013, Kenya held its first General Election
since the promulgation of the new Constitution on 27th August 2010. The
Constitution was a culmination of the efforts of the Kenyan people to
bring about a more progressive governance set-up. Kenyans affirmed the
new Constitution as the supreme law of the Republic, which binds all
persons and all State organs.
[2] All powers to be exercised in public
functions, therefore, must flow from the Constitution. Indeed, judicial
authority, under Article 159 (1) of the Constitution, is derived from
the people and vests in, and shall be exercised by the courts and
tribunals established under this Constitution. Additionally, national
values and principles of governance, as set out in Article 10 of the
Constitution, underpin the conduct of governance in every respect.
[3]
The Independent Electoral and Boundaries Commission (IEBC) was created
by Article 88 of the Constitution, for the management of the country’s
electoral processes. It is conferred with the responsibility for
conducting free, fair and transparent elections.
[4] The elections of 4th March, 2013 were the first in Kenya to
attempt to use electronic facilitation. The IEBC, at various stages of
the election, deployed the following technologies: (i) Biometric Voter
Registration (BVR) during voter registration; (ii) Electronic Voter
Identification (EVID) on polling day; and (iii) Results Transmission
System (RTS) during tallying.
[5] On 19th November, 2012, the IEBC began a voter registration
exercise, which culminated in approximately 14 million voters being
registered. On 4th March, 2013 voters went to the polls in significant
numbers. A record 86% of registered voters were reported to have
participated in the General Elections. After the polls officially closed
on that day, the IEBC began the process of vote tallying, and the
results were then broadcast to the public. B. DECLARATION OF RESULTS,
AND THE ENSUING PETITIONS
[6] On 9th March, 2013, five days after the General Elections were
held, the Chairman of the IEBC, Mr. Issack Hassan (second Respondent),
announced that Mr. Uhuru Kenyatta had received 6,173,433 votes out of a
total of 12,338,667 (50.07% of all the votes cast), while Mr. Raila
Odinga (the petitioner) had received 5,340,546 votes (43.31% of the
votes cast). Pursuant to Article 138(4) of the Constitution, Mr. Hassan
declared Mr. Uhuru Kenyatta, the President-elect.
[7] Subsequent to the announcement, three petitions challenging the
results of the Presidential elections were filed at the Supreme Court.
(i) Petition No. 3 of 2013
[8] On 14th March 2013, Petitioners Moses
Kiarie Kuria, Denis Njue Itumbi and Flowrence Jematiah Sergon filed a
petition against the IEBC as the 1st 3 respondent, and Mr. Isaack
Hassan. The basis of the petition was that the respondents’ decision to
include rejected votes in the final tally had a prejudicial effect on
the percentage votes won by Mr. Kenyatta. The petitioners asserted that
the second respondent’s actions were in contravention of Articles 36(b)
and 138(c) of the Constitution, and Rule 77(1) of the Elections
(General) Regulations, 2012. (ii) Petition No. 4 of 2013
[9] The second Petition was filed by Gladwell Wathoni Otieno and
Zahid Rajan on 16th March, 2013, against the IEBC as the 1st respondent,
Mr. Issack Hassan as the 2nd respondent, Mr. Uhuru Kenyatta as the 3rd
respondent and Mr. William Ruto as the 4th respondent. The Petitioners
aver that the election was not conducted substantially in accordance
with the Constitution, or the Elections Act and the governing
Regulations.
[10] In particular, the Petitioners aver that the IEBC failed to
establish and maintain an accurate Voter Register that was publicly
available, verifiable and credible as required by Articles 38(3), 81(d),
83(2), 86 and 88(4) of the Constitution, sections 3, 4, 5, 6, 7 and 8
of the Elections Act, 2011 and the Elections (Registration of Voters)
Regulations, 2012.
[11] The Petitioners, in addition, claim that the true number of
registered voters is unknown and, therefore, the IEBC did not have an
accurate voters’ register. They assert that the 1st and 2nd respondents
repeatedly changed the official number of registered voters. The
Petitioners further assert that the absence of a credible Principal
Voter Register vitiates the validity of the Presidential elections.
[12] The Petitioners further assert that the electoral management
system adopted by the IEBC was complex and had many shortfalls, contrary
to the constitutional requirement that it be a simple, accurate,
verifiable, secure, accountable and transparent system. In particular,
the Petitioners aver that the IEBC failed to meet the mandatory legal
requirement to electronically transmit election results. The Petitioners
aver that the failure of the electronic system put in place by the IEBC
and their failure to electronically transmit election results affected
the validity of the Presidential elections.
[13] The Petitioners aver that the 1st and 2nd respondents did not
discharge their obligation under the Constitution, because the tallying
and verification of the results did not happen at the polling stations;
there was no electronic transmission of provisional results; and party
agents were excluded from the National Tallying Centre.
[14] The Petitioners further aver that the 1st Respondent violated
the Constitution and the Public Procurement and Disposal Act (Cap. 412C,
Laws of Kenya), by awarding the tender to an unqualified bidder who
then supplied devices that did not work properly, or simply failed, on
election day. (iii) Petition No. 5 of 2013
[15] The third Petition was filed by Mr. Raila Odinga on 16th March,
2013 against the IEBC as the 1st Respondent, Mr. Isaack Hassan as the
2nd Respondent, Mr. Uhuru Kenyatta as the 3 rd Respondent and Mr.
William Ruto as the 4th Respondent. The Petitioner avers that the
electoral process was so fundamentally flawed that it precluded the
possibility of discerning whether the presidential results declared were
lawful. The Petitioner seeks relief from this Court pursuant to
Articles 2, 6, 10, 38, 73, 82, 86, 259, 260 of the 5 Constitution; the
Independent Electoral and Boundaries Commission Act, 2011 (Act No. 9 of
2011); Regulations 59(1), 79 and 82 of the Elections (General)
Regulations 2012; the Elections Act, 2011 (Act No. 24 of 2011) and
Sections 4 and 25 of the IEBC Act, 2011.
[16] The Petitioner avers that the first and second Respondents did
not carry out a valid voter registration, in contravention of Article 83
of the Constitution, and Section 3(2) of the Elections Act, 2011
because their official tally of registered voters changed several times.
This resulted in the final total number of registered voters differing
materially from what was in the Principal Register.
[17] The Petitioner also avers that the first respondent failed to
carry out a transparent, verifiable, accurate and accountable election
as required by Articles 81, 83 and 88 of the Constitution. The
Petitioner asserts that there were several anomalies that occurred in
the process of manual tallying, such as: the votes cast in several
polling stations exceeding the number of registered voters; differences
between results posted and the results released by the first Respondent;
the use of unsigned Form 36 to declare the results.
[18] The Petitioner further avers that the electronic systems
acquired and adopted by the first Respondent to facilitate the General
Election were poorly designed and implemented, and destined to fail. Due
to the failure of the system, the first Respondent was unable to
transmit the results of the elections, in contravention of Regulation 82
of the Elections (General) Regulations, 2012. (iv) Consolidation of
Petitions 6
[19] On 25th March 2013, by the directions of the Supreme Court, the
three petitions were consolidated. The Court further ordered that the
file for Petition No. 5 be deemed to be the pilot file for the recording
of all proceedings and for rendering the final decision. The Court gave
the following directions with respect to parties in the consolidated
petitions: the Petitioner in Petition No. 5 of 2013 to be referred to as
the first Petitioner; the Petitioners in Petition No. 4 of 2013 to be
jointly referred to as the second Petitioner; the Petitioner in Petition
No. 3 of 2013 to be jointly referred to as the third Petitioner; the
respondents to remain as in Petition No.5. C. AGREED ISSUES FOR TRIAL
[20] Prior to the pre-trial conference, the Court drafted a summary of
the issues and served this upon the parties for scrutiny and
consideration. This was the basis of agreement on issues for trial,
which may be summarized as follows:
1. Whether the 3rd and 4th Respondents were validly elected and
declared as President-elect and Deputy President-elect respectively, in
the Presidential elections held on the 4th of March, 2013. [This is the
crux of the case].
2. Whether the Presidential election held on March 4th, 2013 was
conducted in a free, fair, transparent and credible manner in compliance
with the provisions of the Constitution and all relevant provisions of
the law.
3. Whether the rejected votes ought to have been included in
determining the final tally of votes in favour of each of the
Presidential-election candidates by the 2nd Respondent. 7 4. What
consequential declarations, orders and reliefs this Court should grant,
based on the determination of the Petition. D. PRESIDENTIAL ELECTION
VOTE-TALLY: ARE “REJECTED VOTES” RELEVANT IN COMPUTING PERCENTAGES? (i)
Background
[21] Petition No. 3 seeks to challenge the decision by the 2nd
Respondent to include “rejected votes” in the tallying process when
calculating the percentage of votes in favour of each candidate. The
Petitioner alleges that this decision was unlawful and had the
prejudicial effect of reducing the percentage of votes won by Hon. Uhuru
Kenyatta. The Respondents, on their part, aver that the Constitution
does not expressly provide that rejected votes should not be counted in
the computation of the threshold percentage for a win. Having sought and
received divergent legal opinions on the issue, the Respondents now
urge the Court to settle the issue, as it is likely to arise in future
elections.
[22] The specific questions to be answered in this claim are as follows:
1. Whether in determining that a candidate has met the threshold
stipulated in Article 138 (4)(a) of the Constitution, the term “all the
votes cast” includes (i) only valid votes, or (ii) both valid and
rejected votes.
2. Should a ballot paper that has been rejected under the provisions
of Regulation 77 of the Elections (General) Regulations, 2011, and has
been categorized as being “void”, be capable of being factored in,
during the tallying process? 8 (ii) Petitioners’ Case
[23] The Petitioners state that “rejected votes” were erroneously
factored into the tallying system by the 2nd Respondent, and that this
has had the prejudicial effect of reducing the percentage of votes won
by Uhuru Kenyatta, and keeping his tally only slightly above the
threshold for a win.
[24] The Petitioners state that, at the commencement of transmission
of Presidential election results, the 2nd Respondent excluded rejected
votes from the computation of the percentage of the votes cast. They
state that the common understanding at this stage, was that the votes
cast as envisaged by Article 138 of the Constitution included only
ballots that constituted valid votes.
[25] They further assert that in calculating the percentage
attributable to each candidate, the Respondents erroneously and
unlawfully used a format that included rejected votes as a basis for
determining whether a candidate had met the threshold stipulated in
Article 138(4)(a) of the Constitution.
[26] They aver that Rule 77 (1) of the Election (General)
Regulations, 2012 states that, rejected ballot papers shall be void and
shall not be counted. Consequently, the results announced at each
polling station as contemplated by Articles 86 (b) and 138 (3) of the
Constitution, cannot include rejected votes among the results announced
in favour of any candidate. The Petitioners contend that Rule 77 (1) of
the Election (General) Regulations, 2012 states that, rejected ballot
papers shall be void and shall not be counted. Consequently the results
announced at each polling station as contemplated by Articles 86 (b) and
138 (3) of the Constitution, cannot include rejected votes among the
results announced in favour of any candidate. 9
[27] In the submissions, Mr. Regeru, counsel for the Petitioners,
based his arguments on several points, which he urged the Court to use
as tools of analysis, in reaching a conclusion in the matter: one being
the law as stated in the Constitution, Article 259; and Section
109(1)(p) of the Elections Act 2012; another being arguments based on
common sense and logic; and another still, the legal opinions filed as
evidence; yet another, being the practice of the 1st and 2nd
Respondents; and another still, comparative practice in other
jurisdictions. They urge that improperly-marked ballots should be
rejected and not factored into the counting and tallying of votes. They
rely on the case of Popular Democratic Movement v.
Electoral Commission, Constitutional Case No. 16 of 2011, where the
Seychelles Constitutional Court (Burhan, J.), being faced with the
question whether a rejected vote could be considered a “cast vote”, held
that: “rejected ballot papers are not to be counted as ‘votes’,
therefore the term ‘votes cast’ cannot and will not include ‘rejected’
ballot papers”.
(iii) Responses
[28] Mr. Ngatia, learned counsel for the 3rd
Respondent, in oral submissions, founded his client’s case on certain
facts: transmission of results started on the evening of 4th March 2013;
electronic results were transmitted without factoring in the rejected
votes, and a stage was reached when the rejected votes on the electronic
board had accumulated to the figure of 300,000; so in a real sense,
they became “candidate number 3,” after the 1st candidate and the 2nd
candidate; members of a rival political party then wrote a letter to the
Respondent, requesting that rejected votes be factored in the
computation of percentages; to factor in the rejected votes would mean
that a candidate who had a 53% lead could come down to 49%; and such a
situation would then occasion a run-off election between the two leading
Presidential election 10 candidates.
Mr. Ngatia submitted that, towards the evening of 5th of March, the
1st Respondent announced that, thenceforth, the 2nd Respondent would
depart from its previous position and now factor in the rejected votes.
He submitted that this announcement was made without giving any other
Presidential election candidates an opportunity to be heard; and that
all the legal opinions given, vindicated his complaints.
[29] Mr. Ngatia
urged that the Constitution, in Article 138, makes reference to “votes
that are cast”. But from the Elections Act, confusion is apparent; as a
vote is equated to a ballot paper.
[30] Mr. Ngatia submitted that a ballot paper is nothing more than an
instrument to convey the choice of a voter; and a vote is the definable
and ascertainable ballot paper; once the ballot has been translated
into a valid choice, it becomes a vote. He submitted that there cannot
be a vote which is invalid, what is invalid is a ballot paper; and, as a
vote is a defined choice, a ballot which does not translate into a vote
is nothing more than a ballot which is rejected.
[31] Mr. Ngatia
submitted that rejected votes should never be the basis for triggering a
run-off election.
[32] Mr. Kigen, learned counsel for the 3rd Respondent, also urged
that the prospect of a ballot paper acquiring the character of a vote is
conditional on it clearly showing the choice and preference of the
voter. As long as the document deposited in the ballot box does not
clearly show what the intention of the voter is, then it should not be
included as a vote and should not be allowed as part of the tallying, in
ascertaining winning margins. 11
[33] Counsel contends that the inclusion of rejected votes can only
work against a candidate with more votes, and not to the disadvantage of
the runner-up.
[34] Mr. Oraro, learned counsel for the Petitioner in Petition No. 5,
submitted that Article 138(4) of the Constitution means what it says:
there is no qualification to the phrase “votes cast”; thus all votes
cast must be included whether valid or rejected, in the computation of
the percentage threshold for a win. He argued that if the drafters
intended that only a certain category of votes would be considered for
purposes of determining whether the winning percentage threshold had
been met, nothing would have been easier than to stipulate so.
[35] He remarks a signal by this Court that, it is not tenable to
ascribe meanings to constitutional provisions through the sheer craft of
interpretation, or by way of endeavours to discern the intentions of
Parliament, where the wording of legislation is clear and entails no
ambiguity.
[36] Mr. Oraro submitted that the distinction given by Mr. Ngatia on
‘vote’ and ‘ballot paper,’ is a distinction without a difference: as
what is defined in the Elections Act is a ballot paper; ballot paper
means paper used to record the choice made by voters and shall include
an electronic version of a ballot paper, or its equivalent for the
purposes of electronic voting. [37] Counsel further submitted that the
argument by the Petitioners for excluding rejected votes is based upon a
Regulation; and so the position urged was that the Constitution should
be made to fit the terms of subsidiary legislation: a proposition to be
rejected, as regulations cannot be used to interpret a provision of the
Constitution which is the supreme law. 12
[38] Mr. Oraro submitted that Regulation 77 of the Elections
(General) Regulations, 2012 does not require the exclusion of rejected
votes in the final tally, for the purpose of determining whether a
Presidential election candidate has attained the threshold percentage
required by Article 138 of the Constitution. For Regulation 77 (e)
prescribes when a ballot paper is to be rejected, and is not to be
attributable to any of the candidates, nor feature in the aggregate
tally for the candidate.
[39] Mr. Oraro submitted that whether a ballot paper has been
rejected and void, for purposes of being attributed to any one
particular candidate, does not and cannot change the fact that it was a
“vote cast”.
[40] Learned counsel, Mr. Ndubi for the 2nd petitioner, agreed with
the 1st Petitioner’s position, and urged that the Constitution of Kenya,
2010 had the clear intention to repeal and replace the Constitution of
Kenya, 1969 which has been in force. The former Constitution had
provided that “the candidate for President....and who receives a greater
number of valid votes in the presidential election than any other
candidate...” So, to determine the winner in Presidential elections, the
reference was to “valid votes”; and this is now replaced with “votes
cast” – an expression so broad as to include “rejected votes”.
[41] For the Respondents, counsel submitted that the decision to
include “rejected votes” in the elections was made in good faith, based
on a literal interpretation of Article 138 (4), as read together with
Articles 86 (b) and 38 (b) of the Constitution: and these Articles do
not provide that rejected votes should not be counted, or considered in
the computation of Presidential election vote-percentages, envisaged
under Article 138 (4) of the Constitution. 13 E. THE VOTERS’ REGISTER:
DID IT AFFECT THE VALIDITY OF THE PRESIDENTIAL ELECTION?
(i)
[42] The Petitioners’ Case Lead counsel, Mr. George Oraro, made
submissions on the role of technology in relation to voter registration.
He submitted that the first Respondent had adopted the “BVR” (Biometric
Voter Registration), a computer-based registration solution. This
involves biometric technology, which uses computer finger-print scanners
and digital cameras to capture the bio-data of an applicant; such
personal details of finger-prints and face photo technology are used to
verify the authenticity of the voter, and to ensure greater transparency
and credibility in the elections.
[43] The Petitioner submitted that the first Respondent had
represented to the public that the BVR system would ensure quick and
precise voter identification, and this would guarantee a credible
election and prevent fraud.
[44] Counsel focused his submissions on anomalies and discrepancies
in the number of registered voters occasioned by the use of a plurality
of voter registers. He submitted that, as of the 18th December 2012, the
total number of registered voters on the provisional Voter Register was
14,333,339. The provisional register was then opened to the public for
inspection. This register was completed and confirmed by IEBC by Gazette
Notice; and it stood as the Principal Voter Register with a total of
14,352,545 registered voters. However, this number was inconsistent with
the figure of 14,352,533 registered voters, by the first Respondent’s
declaration of Presidential election results on 9th March 2013.
[45] Mr. Oraro submitted that the IEBC tried to explain the
discrepancy in numbers by stating that the 14,352,533 were registered
voters on the Principal 14 Register, but had not included 12 special
cases from Soy Constituency in Uasin Gishu County, as well as 31,318
persons registered in the non-biometric special register. However, Mr.
Oraro stated that this explanation was not valid, as it entailed
mathematical inconsistencies: 14,352,533 +12+31,318=14,383,863 – an
inconsistency that was further compounded by the figure of 36,236 which
the third Respondent’s witness said was in the special register. Counsel
submitted that the said special register was never made public. Mr.
Oraro submitted that the lack of information from IEBC was contrary to
Article 10(2) (c) of the Constitution which provides that transparency
is one of the national values and principles of governance. Counsel
urged that IEBC’s failure to publish the information was also contrary
to Section 27 (1) of the Independent Electoral and Boundaries Commission
Act, 2011 (No. 9 of 2011) which provides that – “The Commission shall
publish and publicize all important information within its mandate
affecting the nation.”
[46] Learned counsel, Ms. Kethi Kilonzo, for the 2nd Petitioner,
entered upon her submission by referring to the difference between the
right to a free and fair election, in the terms of Article 38 (2) of the
Constitution, and the right to be registered as a voter and to vote,
provided for in Article 38 (3). She submitted that the right to vote is
not an absolute right but a conditional right, and that one condition
attached to this right is the requirement for the voter to be
registered, before exercising the right to vote.
[47] Counsel submitted that there can be no free and fair elections
if there is no credible register. She derived the definition of a
register from Section 2 of the Elections Act, 2011 (No. 24 of 2011). By
this provision, constituency register means: 15 “the register of voters
compiled in respect of each constituency by the Commission.” Section 2
of the same Act defines the principal register of voters as: “a current
register of persons entitled to vote at an election prepared in
accordance with section 3 and includes a register that is compiled
electronically.”
[48] Counsel submitted that Section 3 of the Act provides that every
citizen will be allowed to exercise their right to vote, subject to
Article 138 (3) of the Constitution, if they are registered in the
Principal Register of Voters. Based on this provision, learned counsel
submitted that there is only one register, the Principal Register of
Voters. She further submitted that Section 4 of the Act provides that
there shall be a register to be known as the Principal Register of
Voters, which shall comprise a polling station register, a ward
register, a constituency register, a county Register and the register of
voters residing outside Kenya. Outside this Register, counsel urged,
the law does not provide for any other register. She submitted that
there was no provision in the law for a special non-biometric register.
Learned counsel submitted that the use of the special register was a
violation of the Constitution and the law. She also stated that the
validity of the Presidential election, and the right to equality and to
vote, was infringed by the use of this special register.
[49] Further, learned counsel stated that there could be no additions
to the Provisional Register as publicized by the IEBC on the 18th
December 2012. This is because Section 5 of the Elections Act provides
that there can be no registration of voters within 60 days of the first
General Election. 16
[50] Section 6 of the Act provides that after fourteen days from the
date of inspection of the register of voters, IEBC is to compile,
complete and publish a notice in the Gazette, if an amendment of the
register of voters is effected. Counsel submitted that the special
register of voters with biometrics should have been prepared before the
gazettement process, and published thereafter.
[51] In the Indian case of Lakshmi Charansen and Others v A.K.M
Hassan Uzzaman and Others, 1985 SCC (4) 689 SCALE 384, the Supreme Court
considered the question of alterations to electoral rolls. The facts of
the case were based on a writ petition filed before the High Court in
Calcutta which alleged that the electoral rolls in the state of West
Bengal had not been properly revised for the purposes of the general
elections. The Supreme Court held that the erroneous inclusion or
omission of the names of a few persons may have serious consequences.
But if a considerable number of names of such persons are either wrongly
included in, or excluded from the electoral roll, it will be of great
consequence. The Court also held that: “It is true as submitted on
behalf of the Election Commission, a perfect electoral roll is not
possible. But at the same time, it must be remembered that the name of
any eligible voter should not be omitted from, nor the name of any
disqualified person included in the electoral roll, in violation of any
constitutional or statutory provisions. The error, when pointed out, has
to be removed.”
[52) Learned counsel, Mr. Oraro took up the issue of a registration
book known as the “Green Book,” used by IEBC; he urged that such a book
was not provided for in law. He submitted that there had been a number
of anomalies in voter registration, as in the case of Makueni
Constituency, with different figures for registered voters for different
elective posts: the total number of 17 registered voters in the
Principal Register of Voters is 64,708; for the Presidential seat is
64,708 (as reported by IEBC during declaration of results); for the same
position, by Form 36, the figure is 64,525; for the Governor seat,
64,877; for Senator seat, 64,879 and for the National Assembly seat,
64,976.
[53] Counsel urged that the election of the President in Makueni
Constituency did not meet the test of verifiability, accuracy, or
credibility.
[54] Miss Kilonzo urged that in polling station No.083 in Kieni
Constituency, the total number of votes cast was 321, with 310 for the
President-elect. Yet the Principal Register published on the website of
IEBC on the 24th February 2013, showed only one registered voter in that
polling station. The presiding officer did not indicate the number of
people who were registered to vote in that polling station; and so a
question remained as to whether these results were valid.
[55] Counsel relied on case law to support her submissions. In the
Indian case of NP Ponnuswami v Returning Officer Nammakal Constituency
(1952) SCR 218, the Baharul Islam J held in a dissenting judgment [at
529 C] that: “the basis of a free and fair election is the voters list
prepared in accordance with the Representation of People Act of 1950 and
the Registration of Voters Rules of 1960. If this is not so done, the
electoral rolls will have no sanctity and consequently election will
also not inspire the confidence of the people.”
[56] Learned Counsel, Mr. Oraro also invoked the Indian Supreme Court
case Narendra Madivalapa Kheni v. Manikarao Patil and Others, 18
Supreme Court of India Civil Appeal No. 1114 of 1976, where the Court
had to deal with alterations made to the electors’ roll after the roll
became final. The Court found and held that: “there is a blanket ban in
Section 23 (3) on any amendment, transposition or deletion of any [name]
or the issuance of any direction for the inclusion of a name in the
electoral roll of a constituency [after] the last date for making
nominations for an election in that constituency. This prohibition is
based on public policy and serves a public purpose. Any violations of
such mandatory provision conceived to pre-empt scrambles to thrust into
the rolls, after the appointed time, fancied voters by anxious
candidates or parties spells invalidity and is in flagrant violation of
section 23(3); names have been included in the electoral roll, the bonus
of such illegitimate votes shall not accrue, since the vice of voidance
must attach to such names. Such void votes cannot help a candidate win
the contest.” (ii) The Responses
[57] The first and second Respondents filed a joint replying
affidavit sworn by Ahmed Isaack Hassan on 19th March 2013. At paragraph 7
of the affidavit, the first and second Respondents stated that the
first Respondent, in exercise of its mandate under Articles 86 and 88(4)
of the Constitution, and Section 4(m) of the Independent Electoral and
Boundaries Commission Act, had deployed appropriate technology in the
performance of its functions. One of the areas where technology was
employed was the registration of voters by use of the Biometric Voter
Register (BVR).
[58] At paragraph 12 of this affidavit, it is deponed that the
Biometric Voter Registration technology was not meant to replace the
legally required manual 19 system of voter registration, but was meant
to provide an additional layer of efficiency and integrity in the
electoral processes.
[59] Counsel for IEBC submitted that this organization, with the
concurrence of all line-stakeholders, had opted to use the Biometric
Voter Registration technology in carrying out the voter registration
exercise. It is submitted that in the process of voter registration, the
Commission, in accordance with Article 83 of the Constitution, put in
place appropriate mechanisms to ensure that all persons who presented
themselves for registration, were registered as voters. The first
Respondent referred to Article 83 (3) of the Constitution as the basis
for having an all-inclusive voter register.
[60] Article 83 (3) of the Constitution thus provides:
“Administrative arrangements for the registration of voters and the
conduct of elections shall be designed to facilitate, and shall not
deny, an eligible citizen the right to vote or stand for election.”
[61] Upon completion of the voter registration exercise, the
Commission developed the Principal Register of Voters, which was used in
the March 2013 General Elections. The first Respondent’s case sought to
rebut three points raised by the Petitioners. The first Respondent
responded to the assertion that the voter registration exercise failed
the people of Kenya, because the registration process did not uphold the
constitutional and statutory requirements, and fell short of the
standards set by international best practice, by compromising the
integrity of the voter registration exercise. The first 20 Respondent
sought to rebut the presumption of the Petitioners, that Biometric Voter
Registration was meant to replace the manual registration process.
[62] What constituted the Principal Register of Voters? In its
submissions, the first Respondent referred the Court to the definition
of a Principal Register of Voters as provided under Section 2 of the
Elections Act 2011 (No 24 of 2011). It is defined as follows: “a current
register of persons entitled to vote at an election prepared in
accordance with section 3 and this includes a register that is compiled
electronically”.
[63] It was the first Respondent’s submission that a register
compiled electronically is just a component of the Principal Register of
Voters.
[64] This submission was further elaborated by learned counsel for
the first Respondent, Mr. Nyamodi who outlined the three components of
the Principal Register of Voters, as set out below. (a) The Biometric
Voter Register
[65] Mr. Nyamodi referred to the affidavit of Dismus Ong’ondi sworn
on 19th March 2013, as part of the evidence submitted in the first and
second Respondents’ affidavit to Petition Number 5 of 2013, to define
the Biometric Voter Registration System. The deponent described himself
as the Director, Information and Technology of the first Respondent. He
described the BVR as a system that was used to register a voter’s ten
fingers and capture the face image. The biometrics are captured using
this device of registration, comprising a software, a laptop computer, a
digital camera and a device to 21 capture fingerprints. The voter’s
details as required to be captured in law, were taken, and a record of
the voter with biometrics was created. The information captured was used
in the compilation of the Principal Register of Voters. This
explanation was reiterated in the first and second Respondents’ written
submissions. (b) The Special Register
[66] Learned counsel Mr. Nyaoga, for the first Respondent, urged that
Article 54 of the Constitution articulates the rights of persons with
disabilities. It was in respect of this provision, that the special
register, besides the biometric register, was developed. Mr. Nyaoga
emphasised that persons with disabilities are also protected under
Article 83 (3) of the Constitution, which prescribes the components of
the register of voters. He submitted that such persons are also
protected under Article 81, which bears the general principles of the
electoral system.
[67] Mr. Nyamodi invoked Article 38(3) of the Constitution, as an
important safeguard for the right to vote. This Article stipulates:
“(1).... (2).... (3) Every adult citizen has the right, without
unreasonable restrictions ....... a) to be registered as a voter; b) to
vote by secret ballot in any election or referendum; and 22 c) to be a
candidate for public office, or office within a political party of which
the citizen is a member and if elected, to hold office.”
[68] Mr. Nyamodi urged that the first Respondent, by dint of Article
88 of the Constitution, enjoys the unfettered mandate to organise the
conduct of elections and referenda in Kenya and, specifically, to
conduct the registration of voters; the first Respondent has a free hand
in the registration of voters, as provided by Article 88 which states:
“(1) There is established the Independent Electoral and Boundaries
Commission. (2) A person is not eligible for appointment as a member of
the Commission if the person— (a) has, at any time within the preceding
five years, held office, or stood for election as— (i) a member of
Parliament or of a county assembly; or (ii) a member of the governing
body of a political party; or (b) holds any State office. (3) A member
of the Commission shall not hold another public office. (4) The
Commission is responsible for conducting or supervising referenda and
elections to any elective body or office established by this
Constitution, and any other elections as prescribed by an Act of
Parliament and, in particular, for— (a) the continuous registration of
citizens as voters; (b) the regular revision of the voters’ roll; 23 (c)
the delimitation of constituencies and wards; (d) the regulation of the
process by which parties nominate candidates for elections; (e) the
settlement of electoral disputes, including disputes relating to or
arising from nominations but excluding election petitions and disputes
subsequent to the declaration of election results; (f) the registration
of candidates for election; (g) voter education; (h) the facilitation of
the observation, monitoring and evaluation of elections; (i) the
regulation of the amount of money that may be spent by or on behalf of a
candidate or party in respect of any election; (j) the development of a
code of conduct for candidates and parties contesting elections; and
(k) the monitoring of compliance with the legislation required by
Article 82 (1) (b) relating to nomination of candidates by parties. “(5)
The Commission shall exercise its powers and perform its functions in
accordance with this Constitution and national legislation”.
[69] The first Respondent in its submissions, urged that voter
registration is a critical tool for enforcing universal suffrage, by
ensuring that every individual who is eligible to vote is able to
exercise his or her right to vote. It also serves the principle of equal
suffrage as it guarantees that every voter will cast his or her ballot
in parity with all other voters. Accordingly, the special register was a
tool aimed at ensuring that there was no disenfranchisement of citizens
who had the right to vote. It was the first Respondent’s submission
that the special register was also anchored on Article 27 of the
Constitution, which provides that every person is equal before the law
and 24 has the right to equal protection and equal benefit of the law.
It was, therefore, imperative to ensure that the registration process
was inclusive, and provided for measures to include all persons.
[70] It was on the basis of such constitutional guidelines, that the
first Respondent developed the special register. To this end, the first
Respondent invoked the case of Georgian Labour Party v. Georgia 9103/04
(2008) ECHR 1888. The Court, in this matter, stated thus: “The Court
considers that the proper management of electoral rolls is a
pre-condition for a free and fair ballot. Permitting all eligible voters
to be registered preserves, inter alia, the principles of universality
and the equality of the vote, and maintains general confidence in the
State administration of electoral processes”
[71] The special register was meant, according to the first
Respondent, to serve a certain category of “special” persons: a) voters
with disability: those whose fore-limbs or parts of their fore-limbs
were unavailable for the purposes of capturing their biometrics; b)
those who, due to the nature of their work, had either their
fingerprints scarred or those whose fingerprints had lost impression and
could not be captured. (c) the elderly, whose fingerprints, due to the
decrease in elasticity of their skin, could not be captured; 25 d)
twelve persons from Soi Constituency who had been registered using the
training codes and who had to be added to this register.
[72] Mr. Nyamodi, submitted that, over and above the biometric and
special registers, the primary data entry point, which was done by hand,
was the Green Book, otherwise known as the Primary Reference Book. He
elaborated that upon the completion of the voter registration exercise,
there emerged a need to clean up the register to eliminate persons who
had registered more than once, and persons who had not used the
requisite documents for registration, namely, a valid passport, or a
personal identity card. This clean- up exercise created the duplicate
register and the exceptional register. The persons in these two
registers were not allowed to vote.
[73] Counsel referred the Court to the affidavit of Immaculate
Kassait, who elaborated the process of voter registration. The deponent
swore the affidavit as the Director, Voter Registration Programme of the
First Respondent. The deponent makes the following averments: a) The
Commission used a limited number of BVR kits which necessitated the
sharing of these devices between polling stations within the same
county. b) It was a requirement that any person registering as a voter
should state their preferred polling station. c) In the course of
registration, some voters were inadvertently assigned the wrong polling
stations. d) To correct these errors, the Principal Register of Voters
was opened for inspection and verification to the Public, 26 pursuant to
the provisions of Section 5 of the Elections Act. e) The Commission
then ordered a complete audit of the Principal Register, as against the
Green Book which was the primary entry of data. f) The persons assigned
the wrong polling stations were then assigned the correct ones, as
indicated in the Green Book, and these transfers factored into the
Principal Register of Voters. g) This verification exercise naturally
resulted in a variation between the number of registered voters in the
provisional register and the Principal Register. h) On 18th February
2013, the Commission held a meeting in which it realised that the
provisional register was only about 99.5% accurate, as it did not
contain several names that had been captured in the Green Book, which
was the primary reference document; for in some instances, the BVR kits
had either been damaged or dis-configured and could not relay the data
captured in them. i) The Commission, in a bid to ensure that all the
persons who had presented themselves for registration were not
disenfranchised owing to the failure of the BVR kits, resolved to allow
the persons in these special circumstances to vote, upon verification of
their data. j) The Commission certified the Principal Register, subject
to this resolution. Minutes of the Commission’s meeting with respect to
this meeting were provided. k) This resolution was communicated to the
political party agents by the Commission Liaison Committee. 27 l) The
use of the Green Book in the affected polling stations resulted in an
upward variation in the registered voters at the affected polling
stations.
[74] The first Respondent in its submissions, stated that the figure
of 14,337,399 registered voters was a provisional figure which did not
include the persons without biometrics, duplicates, exceptionals; and
data not yet collected from BVR kits around the country. The special
register contained a list of 36,236 individuals. There was also a
further correction of 30,000 voters who were excluded from the main
register due to operator-errors to do with double entry, and 13,237 of
these were added to the main register. In Soi, twelve people were
excluded from the main register, as they had been added onto the system
through a test account, but were later transferred to the main register.
The total number of registered voters across the country was,
therefore, 14,352,545. In certain polling stations, such as NCC and
Ngong, there was voter movement occurring before the polling date, due
to operator- error. The total number of registered voters in this
register was, therefore, 14,352,284. The variance between the two main
operational registers is 261, a margin of error of 0.0018% which,
according to the first Respondent, can be considered materially
insignificant.
[75] Were alterations made to the Voter Register after the
certification of the Register? Mr. Nyamodi submitted that alterations or
additions may have been made after the 18th February 2013. He added
however that these alterations were made pursuant to the Commission’s
mandate under Regulation 12 (3) of the Elections (Registration of
Voters) Regulations, 2012: “Regulation 12 (3) states that the Commission
may amend the Register of voters after it is certified to the extent
necessary to 28 reflect the result of determination of any claim, or
appeal that was pending at the time the register was certified”.
[76] According to the 1st Respondent, this Regulation empowers the
Commission to amend the register even after the certification, in view
of the 100% audit, and the verification process which took place.
[77] Mr. Nyamodi submitted that the Principal Voter Register existed,
and was determinable and verifiable. He submitted that the decisions
made by the first Respondent to come up with the Voter Register was done
so as to ensure that all the persons who had presented themselves to
register as voters before the deadline, got an opportunity to vote and
exercise their rights under Articles 38 (2) and (3) of the Constitution.
[78] The case of the 2nd Respondent was advanced by learned counsel
Mr. Ahmednassir Abdullahi and Mr. Kamau Karori, who took turns in making
submissions. The 2nd respondent urged this Court to exercise judicial
restraint in the discharge of its mandate, in the sphere of Presidential
election disputes. Mr. Abdullahi focused his attention on the broader
issues of judicial adjudication in the political and constitutional
domains. (These arguments are analysed further on).
[79] The 3rd Respondent asked the Court to note that there were six
different elections held on the same day, including that for the office
of the President: and that the requirements of registration applied
equally to all.
[80] Mr. Ngatia, learned counsel for the 3rd Respondent, submitted
that it was a principle guiding the preparation of the Voter Register,
that the 1st 29 Respondent should make every effort to ensure that all
qualified citizens of Kenya are able to register as voters, and able to
vote during elections and referenda. He specified the relevant
provisions of the law: Articles 10(a), 10(b), 38(3)(a), 88(4)(a),
138(3)(a) of the Constitution, which also express the values and
principles of democracy and the participation of the people.
[81] The 3rd Respondent maintained that the Independent Electoral and
Boundaries Commission had conducted its affairs in a transparent
manner, by issuing press statements, and availing on its website notices
and information regarding all aspects of the electoral process,
including the registration of voters.
[82] The 3rd Respondent asserts that as far as he is aware, the
Principal Register of Voters established under Section 4 (1) of the
Elections Act, was prepared in full compliance with the provisions of
that Act, and the Elections (Registration of Voters) Regulations, 2012.
[83] Winifred Guchu, in her affidavit in support of the 3rd
Respondent’s response, averred that all stakeholders in the electoral
process, including the Petitioner and his party ODM, had participated
in, and were fully informed by the first Respondent about the voter
registration exercise and the various steps taken to assure the
integrity, accuracy, impartiality, efficiency, simplicity and security
of voter registration.
[84] She further avers that on the basis of the
aforesaid assurance, the Jubilee Coalition and the CORD Coalition used
the voter register prepared by the 1st Respondent to conduct nomination
of candidates as stipulated in Part III of the Elections Act, 2011. 30
[85] Of the Petitioner’s claim that the 1st Respondent had maintained
multiple registers, this Respondent averred that he used only one Voter
Register, during the elections held on 4th March 2013, which had copies
extracted from the Biometric Voter Registration system.
[86] The 3rd
Respondent averred that the 1st Respondent had taken robust steps to
involve members of the public, and the Political Parties, in verifying
the integrity and accuracy of the Voter Register – including the
publication of a notice dated 18th February 2013 informing all
stakeholders that the compilation of the Principal Register of Voters
had been completed.
[87] Ms. Guchu averred that the 1st Respondent published a notice
informing the public that it would hold countrywide public sensitization
on the use of the BVR kits on 12th November, 2012 at several venues;
and that it would release the data extracted from the Voter Register.
This data was set out in various forms to provide voter numbers in all
polling stations, and to give statistics of voters without biometrics
per constituency, as well as a detailed voter registration analysis, and
details with regard to expected daily enrolment for the period between
19th November 2012 and 26th November 2012.
[88] Ms. Guchu avers that all political parties received a copy of
the provisional register of voters in the form of a CD-ROM, which she
annexes to her affidavit, together with the e-mail communications by the
1st Respondent to political parties. And she deposes that in one of the
meetings, all political parties agreed that in the event of failure of
the electronic voter identifying device (EVID), the print-out from the
electronic register would be used in the election. The print-out would
be made available at every polling station. 31
[89] Ms. Guchu adds that in yet another meeting, the political
parties complained that some of their supporters had encountered
difficulties with the register during the nomination exercise. Their
complaints were that some names were missing from the electronic
register, while they had registration acknowledgement-slips from the 1st
Respondent. The 1st Respondent explained that these were names of
people whose biometric details had not been captured, or were captured
but subsequently lost. Those details were retained in the manual
register.
[90] The 1st Respondent subsequently provided all the political
parties with a complementary list of registered voters capturing the
details of all the voters whose biometrics were missing. The
complementary list of this category of voters had a total of 36,236
registered voters. There was no objection from any political party
concerning this complementary register.
[91] Ms. Guchu deposes that the
allegation in Janet Ong’era’s affidavit in support of Petition No. 5 0f
2013, to the effect that the Voter Register was tampered with after the
registration period had ended, so as to confer a benefit upon the 3rd
Respondent, is not truthful.
[92] The 3rd Respondent, in his affidavit, recounts the occasion of a
press briefing at a meeting chaired by the Coalition for Reforms and
Democracy’s (CORD) Presidential candidate, in which that party urges
that IEBC should revert to a manual voter registration process, since
the electronic system appeared to be unreliable. The 3rd Respondent
submits that the Petitioner cannot, in the circumstances, claim the IEBC
deliberately set up the electronic system to fail. 32
[93] The 3rd
Respondent seeks to rely on the opinion of the Canadian High
Commissioner which indicates that the IEBC had considered preparing a
manual voter registration system after the procurement of the BVR system
became contentious. He further submits that the Cabinet, supervised by
the Petitioner in Petition No. 5 of 2013, had set up a committee to
assist the IEBC to procure the BVR system within a short time-frame.
[94] He avers that registration of voters in Kenya is manual, since a
person walks to a registration centre to register himself or herself,
and such registration is not done electronically.
[95] Counsel for the
3rd Respondent invoked the Ugandan case of V.K. Bategana v. E. L.
Mushemeza, Election Petition No. 1 of 1996 (HCU) (unreported), in which
non-compliance with certain provisions of the Parliamentary Election
(Interim Provisions) Statute, 1996 was held not to affect the results of
the election. The non-compliance in that election included failure to
display the Voters’ Register, and voting by persons not registered.
[96] Mr. Katwa Kigen, learned counsel for the 4th Respondent,
submitted that a “register” cannot be treated as a record cast in stone;
it should, instead, be perceived as an instrument used by the 1st
Respondent to ascertain the number of registered voters eligible to
vote, and it need not be one register. He submits that Article 38 of the
Constitution entitles every adult citizen to be registered as a voter,
and to vote.
[97] Mr. Kigen further submitted that, in accordance with Article 83
(3), of the Constitution, administrative structures set up for purposes
of the conduct of elections, should not deny a person the right to vote.
He further urges that 33 Article 138 (3)(a) stipulates that all persons
registered as voters are entitled to vote in the elections.
[98] Mr.
Kigen submitted that all persons involved in the process of ensuring
that implementation of the electoral laws, including IEBC, are required
to ensure that an individual who registered to vote and who presents
himself or herself to vote on the day of the elections, is given an
opportunity to do so.
[99] Mr. Kigen submitted that the Voters’ Register is compiled under
s. 4 of the Elections Act, whereas the registration and revision process
is governed by s. 5 of the same Act. These two provisions are, however,
subject to the provisions of the Constitution.
[100] Mr. Kigen
submitted that the definition of the Principal Register of Voters under
Section 2 of the Elections Act, indicates that the register contemplated
is not one register, but rather, several registers. The 4th Respondent
avers that the provisions relating to registration of voters do not
indicate that for a person to exercise his or her right to vote, his or
her name must be in the “Principal Register.”
[101] Further, the 4th
Respondent submitted that the register must be current, must facilitate
voting by electors, and includes a register that is electronically
compiled. Mr. Kigen noted that the word “include” infers that it is not
one register that is contemplated by section 4 of the Elections Act,
which provides that there shall be a Principal Register of Voters that
shall “comprise of” a poll register in respect of every polling station,
a ward register in respect of every ward, a constituency register in
respect of every constituency, a county register in respect of every
county, and a register of voters for persons 34 residing outside Kenya.
He avers that there are five registers contemplated, and that the
argument that there exists only one register, is not founded in law.
[102] The 4th Respondent averred that IEBC discharged its obligations
and acted in good faith, to ensure that the elections were transparent,
participatory and inclusive, by maintaining an up-to-date website, and
engaging in consultations with all political parties, including the
Petitioner’s party, ODM.
[103] Mr. Kigen invoked the Zambian case of
Anderson Kambala Mazoka vs Mwanawasa Scz/Ep/01/02/03/2002, in which the
Court held that every person entitled to vote must be given an
opportunity to vote, if he presents himself at the polling station.
Counsel submitted that every person registered as a voter is entitled to
vote, and that the Petitioners must adduce credible evidence
establishing the wrong-doing they allege, with regard to the register
and the registration process.
[104] The 4th Respondent submitted that
the test applicable is whether a majority of the voters were prevented
from voting for their preferred candidate, and whether the election was
so flawed, or a dereliction of duty by the 1st Respondent so seriously
affected the result, that it could no longer be reasonably said to
reflect the free choice and will of the majority of the voters. F.
ELECTRONIC SUPPORT FOR THE ELECTORAL PROCESS: ITS ROLE IN THE VALIDITY
OF THE PRESIDENTIAL ELECTION (i) The Petitioners’ Case 35
[105] The
Petitioners’ claim is that all the electronic processes adopted by IEBC
failed. After the failure, they allege, the Respondent resorted to
manual systems, in contravention of the law. The central claim revolves
around the transmission of results, where both Petitioners claim that
Section 39 of the Elections Act 2011 (No. 24 of 2011) as read with
Regulation 82 of the Elections (General) Regulations, 2012 create a
mandatory obligation for the electronic transmission of results. Section
39 of the Elections Act states that: “(1) The Commission shall
determine, declare and publish the results of an election immediately
after close of polling. “(2) Before determining and declaring the final
results of an election under subsection (1), the Commission may announce
the provisional results of an election. “(3) The Commission shall
announce the provisional and final results in the order in which the
tallying of the results is completed”.
[106] Rule 82, Elections
(General) Rules, 2012 provides for the obligation to transmit
provisional results electronically: “(1) The presiding officer shall,
before ferrying the actual results of the election to the returning
officer at the tallying venue, submit to the returning officer the
results in electronic form, in such manner as the Commission may direct.
“(2) The results submitted under sub-regulation (1) shall be
provisional and subject to confirmation after the procedure described in
regulation 73”. 36
[107] Both Petitioners argue that, without electronic transmission,
there can be no basis for verification – since verification involves
comparing the provisional results with the final tallies. They contend
that the susceptibility of the electoral process, as conducted, to
manipulation and corruption was all by design, calculated to ensure the
3rd and 4th Respondents triumphed in the Presidential Election.
[108] On
the BVR, the 1st Petitioner makes the claim that due to a botched
procurement process, procurement was taken over by Government. This, he
states, led to the loss of independence from the Executive by IEBC. With
regard to EVID (Electronic Voter Identification), he claims that the
procurement of the kits was the result of an illegal procurement
process; and this led to the procurement of faulty kits that were bound
to fail on election day, as indeed they did. He claims that IEBC
abandoning EVID at the polling stations, “prevented millions of voters
[from having] their votes counted accurately.” This, he claims, was in
direct derogation of Regulation 69 of the Elections (General)
Regulations, 2012 which states: “ (1) before issuing a ballot paper to a
voter, an election official shall— (a) require the voter to produce an
identification document which shall be the same document used at the
time of registration as a voter; (b) ascertain that the voter has not
voted in that election; (c) call out the number and name of the voter as
stated in the polling station register; 37 (d) in case of an electronic
register, require the voter to place his or her fingers on the
fingerprint scanner and cross out the name of the voter once the image
has been retrieved...”
[109] The 2nd Petitioner contends that the
electronic voter registration (BVI) and Identification (EVID) systems
comprise of a foolproof register of voters; it should automatically
subtract from the main register voters who have voted, thus providing a
running tally of votes cast. Biometric Registration of Voters has its
basis in the Elections (Registration of Voters) Regulations, 2012,
Regulation 13, which provides for the capturing of the biometric data of
a voter, such as the palm-print and facial impressions: “ (1) A person
who is not already registered as a voter but who wishes to be so
registered shall make an application in Form C set out in the Schedule.
“(2) An application under subregulation (1) shall be made to the
registration officer for the constituency in which the person wishes to
be registered. “(3) The registration officer shall, for the purpose of
registration, collect such biometric data which include palm print and
facial impressions of the persons applying for registration, as the
Commission may determine.”
[110] The second Petitioner states that the
BVR system should be centrally integrated [networked], to ensure
multiple voting is rendered. She contends that IEBC’s approach of
downloading piecemeal, portions of the biometric register into laptops,
leads to uncertainty as to what register was so 38 downloaded. Without
these safeguards, she contends, there was nothing to stop double voting.
[111] Through her learned advocate, Ms. Kethi Kilonzo, the second
Petitioner states that the electronic transmission of results generated a
vote-count that maintained a consistent, spurious gap between the two
leading presidential candidates. She contends that it is scientifically
impossible to maintain such a consistent disparity in results that are
being randomly relayed. She also states that the “rejected votes”
generated were so considerable in numbers as to be inaccurate. She
contends that IEBC occasioned undue delays in publicly acknowledging the
evident failures in the electronic transmission system. In support of
her contentions, she points to the daily Press article by M/s. George
Kegoro and Wachira Maina, that basically affirms this position.
[112]
Ms. Kilonzo also relies on an Indian case, A.C. Jose v Sivan Pillai
& Others 1984 AIR 921, to support the contention that, where certain
requirements are prescribed by an Act, and its Rules, IEBC was not at
liberty to derogate from such Rules, or exercise any discretion. In the
case in question, the Supreme Court of India stated: “(a) When there is
no Parliamentary legislation or rule made under the said legislation,
the Commission is free to pass any orders in respect of the Conduct of
elections [86 H]. “(b) Where there is an Act and there are express Rules
made thereunder, it is not open to the Commission to over-ride the Act
or the Rules and pass orders in direct disobedience to the mandate
contained in the Act or the Rules. The Powers of the Commission are
meant to supplement rather than supplant the law (both statute and
Rules) in the matter of 39 superintendence, direction and control as
provided by Article 324 [87A-B].
“(c) Where the Act or the Rules are
silent, the Commission has no doubt plenary powers under Article 324 to
give any direction in respect of the conduct of election [87C].
“(d) Where a particular direction by the Commission is submitted to
the government for approval, as required by the Rules, it is not open to
the Commission to go ahead with implementation of it at its own ...
will even if the approval of the Government is not given” [87D]. (ii)
The Responses
[113] All Respondents argue that IEBC is not required by
the Constitution or the law to establish and conduct an electronic
election process as alleged by the Petitioner. The processes of voting,
counting and tallying and transmitting of the final results are required
and designed by law as manual processes, contrary to the allegations of
the petitioner. This is supported by Rule 59 and 60 of the Elections
(General) Regulations, 2012, which state: ‘59. ... (2) A voter shall
cast his or her vote by the use of a ballot paper or electronically. ...
“60. Where the Commission intends to conduct an election by electronic
means, it shall, not later than three months before such election,
publish in the Gazette and publicise through electronic and print media
of national circulation and other easily accessible medium guidelines
that shall apply in such voting.” 40
[114] The Respondents all contend that IEBC has a discretion under
Section 44 of the Elections Act, to deploy appropriate technology as it
deems fit, in the administration and management of elections. Section 44
Provides: “The Commission may use such technology as it considers
appropriate in the electoral process.”
[115] The Respondents urge that
Section 4(m) of the Independent Electoral and Boundaries Commission
(IEBC) Act, 2011 (No. 9 of 2011), reiterates this discretion: “As
provided for by Article 88(4) of the Constitution, the Commission is
responsible for conducting or supervising referenda and elections to any
elective body or office established by the Constitution, and any other
elections as prescribed by an Act of Parliament and, in particular, for —
... (m) the use of appropriate technology and approaches in the
performance of its functions....”
[116] Consequently, according to the
Respondents, there was no legitimate expectation that the Commission
should make use of any technology in voting, ballot counting,
transmission, tallying and declaration of the results.
[117] The
Respondents state that, contrary to the averments of the Petitioners,
technology was never envisaged by the 1st Respondent as the sole means
of registering voters, of identifying them on voting day, or in the
transmission and tallying of results. Electronic Technology is utilized
in the elections as part of other numerous checks and controls built in
the entire electoral process, to ensure that the 1st Respondent fulfils
its mandate under 41 Article 81 of the Constitution, to deliver free and
fair elections. Technology, they argue, is not a replacement or
alternative to the manual voting, counting, tallying and transmission
processes, that are expressly required by law. Further, the Respondents
contend, the Petitioners also misunderstand the policy and legal
framework regarding the use of technology.
[118] The Respondents submit that all the allegations by the
Petitioners have not stood the test of scrutiny, in light of the
pleadings and evidence produced. The 1st and 2nd Respondents
specifically submit that the technologies deployed in the election
experienced challenges, but all such challenges were not catastrophic,
as alleged, and did not impact negatively on the outcome of the
elections.
[119] The 1st and 2nd Respondents contend that EVID worked
well in a majority of the polling stations, alongside the manual
process. Furthermore, they state that RTS, as a check-and-control
mechanism, worked considerably well, as, out of a total of 31,025
polling stations, it did transmit results for all six elective stations
as follows: a) 14,232 (45.9%) polling stations sent results for the
Presidential election; b) 7,082 polling stations sent results for the
Senators’ elections; c) 6,892 polling stations sent results for the
Governors’ elections. d) 9,397 polling stations sent results for the
Members of the National Assembly election; e) 7,968 polling stations
sent results for the County Ward Representatives election; and 42 f)
7,428 polling stations sent results for the Women’s County
Representatives election.
[120] By the evidence, therefore, the
technologies assisted in upholding, rather than vitiating, the will of
the Kenyan people. Contrary to the allegation that the failure of the
BVR/BVI devices prevented millions of voters from having their votes
counted accurately, it is the 1st Respondent’s response that the BVI/BVR
set-up was not designed to electronically count votes.
[121) On the allegation that IEBC abandoned the process of electronic
voting, the 1st and 2nd Respondents state that there is evidence, the
1st Respondent reconfigured the server that had been unable to receive
results transmitted by the Presiding Officers. However, at the time of
restoration of the server, the Presiding Officers had already handed
over their tallies and phones to the Returning Officer, in accordance
with Regulation 73 (4) of the Elections (General) Regulations, 2012.
They also contend that IEBC had engaged the public and the 1st
Petitioner’s political party and his agents on the emerging challenges.
They state that RTS was designed to transmit provisional results, in
accordance with Section 39(2) of the Elections Act 2011, but not the
final result. They state that the lessons learnt from the several
challenges, will provide a basis for strengthening the electoral process
further. Although the technologies used experienced certain
impediments, it was urged, EVID and RTS had no effect, material or
immaterial, on the validity of the Presidential election. Learned
counsel Ms. Lucy Kambuni for IEBC, indeed, relies on the same case cited
by counsel for the 2nd Petitioner, A.C. Jose v Sivan Pillai &
Others (supra), for the contention that, because of the discretion
conferred by the Constitution and the election laws, the IEBC had
plenary powers to decide on its administrative arrangements. 43
[122] Senior Counsel Ahmednassir Abdullahi, for the 2nd Respondent,
complained that the Petition before the Court was not one that usually
arises in the context of Third World countries. He is categorical that
this is a ‘First World complaint’, mainly dwelling on technological
failures, possibilities and challenges. He cites two cases from the
Supreme Court of the Philippines. (GR Number 188456, H. Haary L. Roque,
JR and Others -v- Commission on Election, 2009 and G.R No. 194139
Douglas R. Cagas v The Commission on Elections, 2012). In both cases,
the plaintiffs had based their claims on fears which they had, sparked
by potential abuse and breakdown of technology, and the effect of this
on the integrity of the electoral system. The Court remarked: “If the
machines failed for whatever reason, the paper ballots would still be
there for hand counting, and manual tabulation and transmission of the
ER’s. Further, that the court would not guarantee as it cannot guarantee
the effectiveness of the voting machines and the integrity of the
counting and consolidation software embedded in them.”
[123] Counsel for
the 3rd Respondent submits that electronic systems failed in the Ghana
General Elections of 2012; and also in the United States Presidential
election in 2000. Indeed some States such as New Mexico have voted to
convert from an electronic system back to the paper system. Counsel
therefore applauds our laws, as they give IEBC a wide latitude to
determine whether to use electronic electoral systems. Thus, the
Petitioners cannot claim that the use of technology was the essence of
the elections.
[124] Learned counsel for the 4th Respondent, Mr. Katwa Kigen, avers
that IEBC in various meetings before the elections of 4th March, 2013
informed all 44 political parties, including the Petitioner’s party and
its coalition partners, that since it was deploying BVI for the first
time across the whole country, a paper- register fallback was available,
to ensure that no voter would be disenfranchised, in the event that
technology failed. Such an arrangement is validated by the provision of
Section 83 of the Elections Act, 2011, which deals with situations in
which there is non-compliance with a written law: “No election shall be
declared to be void by reason of non- compliance with any written law
relating to that election if it appears that the election was conducted
in accordance with the principles laid down in the Constitution and in
that written law or that the non-compliance did not affect the result of
the election.”
[125] Mr. Kigen submitted that the allegation that there
was a plot to ensure failure of the electronic system deployed in the
Presidential election, was not supported by evidence. (iii) Analysis
[126] The question of electronic facilitation of the Presidential
election is the most technical one, raised by the parties. It is
governed by a detailed set of legal provisions and regulations. It
raises the vital question: What is the act of voting that is the
entitlement of every voter, as enshrined in the Constitution?
[127]
Counsel for the Petitioners appear to advance the position that the act
of voting is the totality of the electoral process. Therefore, a weak
link in the chain ensures total collapse. They go further and contend
that the chain was made up entirely of weak links, and that this eroded
the casting of the ballot, 45 thereby nullifying the electoral process.
[128] Counsel for the Respondents, by contrast, advance the position
that the act of voting is a galaxy, whose central sun is the signifying
of one’s choice by the marking of the ballot paper, and its subsequent
deposition into the ballot box. Every other process before and after,
revolves around this procedure, and involves only the ascertaining of
the voter’s choice, and the sustaining of the voter’s right to make that
choice. Counsel provides cases from the Philippines, that hold that
even if there was a failure of all other support processes (in
particular electronic ones), the right to vote and to express one’s self
in universal suffrage is not defeated. Manual procedures must come into
operation, to fulfil the electors’ expression of choice.
[129] Article
38 (3) of the Constitution provides safeguards for the right to vote in a
free and fair election, and the right to be registered as a voter.
These two rights give life to every other subsequent procedure,
including the constitutional creation of the IEBC, and the procedures to
be used in registration, voting, transmission, tallying and
verification of the results. To concretize this position, Article 83
states that administrative procedures to be undertaken by IEBC are to
facilitate, and not to deny an eligible voter the right to vote. This
consideration must therefore be the foundation of all interpretations
made to the law by IEBC, and all Courts sitting in appeal from the
decisions taken by IEBC.
[130] Is electronic facilitation for the
election mandatory, or discretionary? The Indian case of A.C. Jose vs
Sivan Pillai & Others 1984 AIR 921, cited by both the Petitioners
and the IEBC, is a case in point. The Supreme Court of India defined the
concept of “plenary power” (administrative 46 measures in Article 83):
powers available to a body to create operational rules where none
existed. However, where a body of law already regulated the subject, it
was not up to the discretion of the public entity to create any
additional measures that derogated from the law.
[131] An objective reading of the Regulations cited, does not reveal a
contemplation of elections conducted solely by electronic means. The
elections of 4th March 2013, were not envisaged to be conducted on a
purely electronic basis. Regulation 60 of the Elections (General)
Regulations, 2012 illustrates that if the elections are to be
facilitated by electronic means only, the relevant guidelines shall be
availed to the public. Regulation 59 provides that voting is done by
marking the ballot paper, or electronically. Thus, the voting system
envisioned in Kenya appears to be manual. Regulation 82, and Section 39
of the Elections Act, which deal with electronic transmission, operate
on the basis that electronically transmitted results are only
provisional. Can there, therefore, be an invalidation of final results,
because of the non-transmission of provisional results?
[132] The
Petitioners assert that this is so. Provisional results, for them, are
the basis of verification of results. The Respondents, by contrast,
assert that this is not so. Verification, for them, means comparing the
final results on Form 34 from a polling centre with Form 36 at the
National Tallying Centre. Their contention appears to be supported by
Article 86(c) of the Constitution, describing the procedure of
verification as the collation and announcement of results by the
Returning Officer (Chair of IEBC), based on results from polling
stations.
[133] It is rightly argued by the Respondents, in our opinion,
that the Court must be alive to the fact that most polling stations are
in the rural areas, where 47 the primary-school polling stations are
dilapidated, and the supply of electricity, to-date, is a distant dream.
Yet voters still go to such polling stations to exercise their right
to vote, and to discharge their civic duty. Of this fact, the Court will
take judicial notice, in deciding whether Presidential elections can be
invalidated due to non-compliance with regulations requiring electronic
transmission. G. VOTE TALLYING: DID IT REFLECT VOTERS’ CHOICE IN THE
PRESIDENTIAL ELECTION? (i) Petitioners’ Case
[134] The crux of the 1st
Petitioner’s case as expressed in the introduction to his written
submissions, is that the 3rd Respondent who was declared President-elect
by the 2nd Respondent, did not meet the threshold set out in Article
138(4) of the Constitution. The basis of this assertion by the
Petitioner is that, upon an evaluation of the evidential materials in
Forms 34 and 36, used in the final tally of the Presidential election
results, there were serious anomalies affecting the final results, as
declared by the 2nd Respondent.
[135] According to the Petitioners, the tallying exercise was marred
by irregularities, as set out in both written and oral submissions as,
follows: i material alteration of primary documents used in the tallying
and verification exercise; ii. mismatch between the Presidential
election results tallied and the total number of registered voters in
various constituencies and polling stations; 48 iii inflation of
Presidential election results of certain presidential candidates,
particularly the 3rd Respondent; iv. deflation of Presidential election
results of certain presidential candidates, particularly the 1st
Petitioner; v. exclusion of Presidential candidates’ agents and
accredited observers from the National Tallying Centre; vi. total
failure and inaccuracy of the results-tallying and verification system,
occasioned by the departure from the electronic transmission of results
to the manual tallying system. (a) Material alteration of primary
documents used in the tallying and verification exercise
[136] The issue
of tallying was largely dealt with by way of evidence in the
depositions and attachments, as regards both Petition No. 4 and Petition
No. 5. In relation to Petition No. 5 of 2013, the issue is covered in
the affidavit of Janet Ong’era, sworn on 15th March 2013. At paragraph
48 of this affidavit, the deponent avers that one of the glaring
anomalies was the alteration of the statutory documents on the files of
many constituencies. This evidence is used by counsel to advance the
submission that, based on these alterations, the accuracy of the final
tally of the Presidential election results also stood in question.
[137] In Petition No. 5 of 2013, specifically at paragraph 5.9, the
Petitioner contended that, the final Presidential election results
published by IEBC were materially different from results reflected in
the county tally. He gives the example of Nakuru County. In other cases,
the deponents averred that there were material alterations between the
verbal declaration of results made by 49 individual Commissioners of the
1st Respondent at the National Tallying Centre, and the final figures
issued by the 1st Respondent, especially in the following areas: South
Imenti, Igembe South, Lagdera, North Imenti, Central Imenti, Bomet East,
and Sigor.
[138] Counsel for the 1st and 2nd Petitioners, submitted
that in Makueni Constituency, the number of registered voters differed
between the results for the Presidential, Governor, Senator, and Member
of National Assembly elections. (b) Mismatch between the Presidential
election results tallied, and the total number of registered voters in
various constituencies and polling stations.
[139] The Petitioner, by
paragraph 51 of the affidavit of Janet Ong’era, indicates a cluster of
26 polling stations where the number of valid votes cast exceeded the
total number of registered voters. In effect, the Petitioner was
inviting the Court to hold that the elections in those polling stations
were rendered invalid, on account of the said discrepancy. (c) Inflation
of Presidential election results of certain presidential candidates,
particularly the 3rd Respondent
[140] The 1st Petitioner submitted that there were instances where
the 3 rd Respondent’s votes were inflated. Mr. Oraro, learned counsel
for the 1st Petitioner, drew the Court’s attention to a comparison of
entries in Form 34 with the corresponding entries in Form 36, for
certain polling stations. At pages 23-24 of the Petitioner’s written
submissions, there is an indication of the polling stations where such
variance existed, resulting in a difference of 50 1,451 votes. According
to the Petitioner, the 3rd Respondent’s votes were also inflated by
7,215 votes, going by the final national tally published by the 1st
Respondent. [141] The 2nd and 3rd Petitioners also submitted that the
results announced for the respective Presidential election candidates at
the County level in Nyeri and Bomet, were different from what was
announced at the National Tallying Centre. In support of this
allegation, the Petitioners relied on a video recording by one Anthony
Mathenge in respect of Nyeri County. The audio- visual recording was
played in Court during the oral submissions by learned counsel, Ms.
Kethi Kilonzo. (d) Deflation of Presidential election results of certain
presidential candidates, particularly the 1st Petitioner
[142] The 1st Petitioner also averred that his votes were deflated by
11,000 votes. Details of the affected polling stations were summarized
in the 1st Petitioner’s submissions. However, this evidence was
introduced at the submission stage, and did not form part of the primary
Petition records – a fact which occasioned valid objection from counsel
for the respondents. (e) Exclusion of Presidential election candidates’
agents and accredited observers from the National Tallying Centre
[143]
Learned counsel for the Petitioners submitted that all the Presidential
election candidates’ agents were asked to leave the tallying room at
the National Tallying Centre. The 1st Petitioner relied on the affidavit
of Prof. Lawrence Gumbe, dated 14th March, 2013 to advance this
assertion. Further, by the 1st Petitioner’s submissions, the fact that
the said agents were allowed twenty minutes of verification had no
significance, as verification should have 51 been done using Form 34,
and not Form 36 as directed by the 1st Respondent. In the submissions,
the 1st Petitioner states that the party agents were ordered out of the
National Tallying Centre and taken to an adjacent boardroom.
The 1st and 2nd Petitioners in Petition No. 4 of 2013, jointly
referred to as the 2nd Petitioner, also submitted that even accredited
observers were not allowed into the National Tallying Centre. However,
on the basis of the evidence of Janet Ong’era, it was submitted that Mr.
Chirchir of URP, and a Ms. Winnie Guchu of TNA were periodically
allowed access into the National Tallying Centre, to the exclusion of
other agents. The overall submission was that the verification process
was contrary to law, as it was carried out unilaterally by the 1st
Respondent. (f) Failure and inaccuracy of results-tallying and
verification system, occasioned by the departure from electronic
transmission of the results, to manual tallying system
[144] The 1st
Petitioner avers that the 1st and 2nd Respondents reverted to a manual
tallying system, which was a discredit and an abuse of the electoral
system, as it lacked transparency, accuracy and accountability, and had
been subject to manipulation by officers of the 1st Respondent.
[145] In the affidavit of Janet Ong’era [at paragraph 36], it is
deponed that for purposes of facilitating the process of manual
tallying, the political parties’ representatives and the IEBC
representatives had agreed that they would obtain Form 34 from each
Constituency and confirm that: the name of the polling station indicated
had been duly gazetted; the form had been signed by the agents and the
returning officers; and it had the 1st Respondent’s stamp. Selected
agents from political parties would then verify the figures in terms of
52 registered voters, votes cast and rejected votes, and they would
thereafter signify their agreement, with or without qualification. An
aggrieved party was entitled to raise a complaint with the 1st
Respondent.
[146] The 1st Petitioner has also relied on the Independent
Review Commission (“IREC”) Report which recommended that the defunct
Electoral Commission of Kenya (ECK) adopts certain safety features in
respect of counting and tallying of votes. The recommended safety
feature, according to the Petitioner, is Form 34; but IEBC has, in
addition, introduced Form 36.
[147] IREC had also recommended computerized data-entry and tallying
at Constituencies, to secure simultaneous transmission of individual
polling- station level data, to the National Tallying Centre, as well as
the integration of this result-handling system in a progressive
election-result announcement.
[148] Another recommendation was to allow
sufficient time before the declaration of final results. It was
anticipated that all parties concerned would have an opportunity to
consider the returns made, and to express objection if need be; and
thereafter, results would be announced.
[149] The Petitioners have
further submitted that the BVR kit, which the 1st Respondent abandoned,
was supposed to provide a running tally of votes cast, to prevent
multiple voting. They aver that the 1st and 2nd Respondents did not put
in place sufficient measures to ensure the accuracy of vote-count, after
the failure of the electronic results-transmission system.
[150] The
Petitioners have relied on Article 138 (c) of the Constitution which
provides that, after the counting of votes at the polling station, the
IEBC shall tally and verify the count, and declare the results. Section
44 of the Elections 53 Act permitted the 1st Respondent to use
appropriate technology, as it deemed necessary.
[151] Counsel for Petitioners, Ms. Kethi Kilonzo submitted that the
counting and tallying of votes was not open, diligent or responsive, and
that Returning Officers, presiding officers and County Returning
Officers, were using different numbers of registered voters from that
contained in the Principal Register. (ii) Responses
[152] The 1st and
2nd Respondents maintain that the counting, tallying, transmission and
declaration of results was efficient, accurate, accountable, lawful, and
a true representation of the will of the people, based on universal
suffrage. The statutory violation and irregularities ascribed to the
election outcome are denied; and the allegation of excess numbers of
votes cast in favour of the 3rd Respondent, is said to be
unsubstantiated.
[153] The 1st and 2nd Respondents maintain that, they went well
beyond the thresholds of the Elections Act, and Regulation 83 of the
Elections (General) Regulations, 2012, and established an elaborate
audit process, which included: a two-step audit process to examine
returns, and a verification team to counter-check the audit findings. In
addition, all Returning Officers were required to personally deliver
the Presidential election results at the National Tallying Centre in
Nairobi.
[154] The “regional teams” received from the Returning Officer
the Form 34s for Presidential election, and Form 36 on both hard and
soft copies. The teams 54 would then run a sanity test to ensure that
the number of valid votes cast, and the rejected votes amounted to the
total vote cast, and that the total number of votes cast for all
candidates equalled the total number of valid votes cast; any errors
found were rectified.
[155] After this 1st review, the 1st and 2nd Respondents stated that
the Returning Officer was referred to the verification team, which
checked the Form 34 and Form 36. This team made changes if necessary,
certified that the results were proper, and forwarded a new Form 36 for
signature by the Returning Officer and the Verification Team leader. The
party agents were then given the Form 36 to counter-check. The
Respondent further stated that a Summary, and the Form 36, was forwarded
to the Commissioners, who would check them again before announcing the
results.
[156] After the announcement by the Commissioners, the Form 36
would be given to a team of two electoral officers who would again
verify, and input data from Form 36 into a spread-sheet, for the final
Presidential election results.
[157] The 1st and 2nd respondents aver
that IEBC maintained the use of the primary manual electoral processes,
which were not in any way challenged, and constructively engaged the
political parties in the process of voting, counting, transmission,
tallying and announcement of results.
[158] The respondents averred that IEBC had held a consultative
meeting with the chief political party agents, and agreed with them on
modes of verification of Presidential election results brought to the
National Tallying Centre by Returning Officers. Subsequently the chief
agents of political 55 parties were, from Wednesday 6th March, 2013
indeed, allowed to enter the tallying room and to observe the tallying
of the Presidential election results.
[159] The 1st and 2nd Respondents
aver that sometime in the evening of 6th March, 2013 the political party
agents inside the tallying room became rowdy, and precipitated
altercations with the Commission staff undertaking the tallies, and in
some instances, threatened to assault the staff. This situation made it
impossible for the Commission to continue undertaking its tallying
exercise, prompting the Commission to relocate the political party
agents to a boardroom in the auditorium, within the National Tallying
Centre. Each of the final tallies (Form 36) were presented to the
political party agents at the said boardroom, 20 minutes before the
announcement of results to the public. The political parties would then
undertake the verification of the Presidential election tallies, before
they were announced.
[160] The 1st and 2nd Respondents’ aver that the
process of tallying as contemplated under the Constitution, the
Elections Act and the governing Regulations, is primarily a manual
system, and not an electronic process.
[161] The Respondents maintain
that there are no constitutional or statutory violations, or widespread
irregularities and malpractices that occurred; or that the votes were
wrongly credited to the 3rd Respondent, or any other candidate. They
urge that there is no basis for seeking a nullification of the election
outcome, as sought by the Petitioner, and that the 3rd Respondent was
lawfully declared President-elect, pursuant to Article 138 (4) of the
Constitution.
[162] In their submission, the 1st and 2nd Respondents
state that the allegations made as regards the tallying and tabulation,
contained in Janet 56 Ong’era’s affidavit, is not factually correct, and
disregards the various important elements of the Register.
They explain this by stating that the quoted figure of 14,337,399
registered voters was a purely statistical entry, accumulated at the end
of the voter registration exercise; that this figure did not include
persons whose biometrics could not be captured, or other exceptional
cases. Further, the Respondents’ advocates faulted the Petitioner for
randomly selecting the 3rd and 4th Respondents’ strongholds in his data
scenario implying irregularity in the electoral process.
[163] The 1st
and 2nd Respondents contend that the Petition is premised on a
misconception of the Principal Register of Voters, the tallying process,
and the legal framework – and would, therefore, not justify the grant
of the prayers sought in the Petition.
[164] The 3rd Respondent sought
to controvert the deposition of the Petitioner in his affidavit of 14th
March, 2013. He states that, contrary to the Petitioner’s allegation,
the agents were not ejected from the National Tallying Centre, but were
relocated to an alternative facility.
[165] He avers that under Article
86(b) of the Constitution, and Regulation 83, the 1st Respondent has a
duty to announce final results on the basis of a physical form, Form 34,
which had to be delivered to the National Tallying Centre, and no other
method, electronic or otherwise, is contemplated under the law.
[166]
The 3rd Respondent further states that, the process of voting,
recording, tallying and declaration of results was conducted in
substantial compliance with the electoral laws and the Constitution. 57
[167] He also submits that, the counting and tallying of votes was to be
conducted manually, in accordance with the provisions of the law, as
electronic tallying of votes is not provided for under the law.
[168]
The 4th Respondent also avers that the elections were conducted
substantially in accordance with the principles laid down in the
Constitution, and all governing law; that there was no breach of law
such as to affect the results of the elections; and that the said
elections do reflect the will of Kenyans. H. SOME ISSUES OF FACT: THE
COURT’S FINDINGS (a) Orders made suo motu
[169] On 25th March 2013, the
Court ordered the scrutiny of all Forms 34 and Forms 36, which were used
in the country’s 33,400 polling stations. The purpose of the scrutiny
was to better understand the vital details of the electoral process, and
to gain impressions on the integrity thereof.
[170] The Court also ordered a re-tallying of the Presidential votes
in 22 polling stations, using Forms 34, 36 and the Principal Register,
as these stations had featured in the Petitioner’s grievance. The
purpose of the re-tally was to establish whether the number of votes
cast in these stations exceeded the number of registered voters as
indicated in the Principal Register. (b) Data Summary
[171] After the
re-tally of the votes cast in the said stations was complete, it was
found that 5 polling stations, out of the 22, had discrepancies as to
the 58 number of votes cast as reflected in Form 34 and Form 36. These
were: Lomerimeri Primary School, Tiaty Constituency; Nthambiro Primary
School, Igembe Central Constituency; Kabuito Primary School, Igembe
Central Constituency; Mugumoini Primary School, Chuka Igambang’ombe
Constituency; and NCC Social Hall, Lang’ata Constituency.
[172] With
respect to the scrutiny of all Forms 34 which were used by the IEBC in
tallying the Presidential election votes, from the 33,400 polling
stations in the country, only 18,000 polling stations were scrutinized.
It was found that Forms 34 were missing in some polling stations such
as: Zowerani Primary School, Kilifi North Constituency; Show Ground,
Kapenguria Constituency; Nakatiyani Water Point, Loima Constituency; and
Mjanaheri Primary School, Magarini Constituency. In addition, the
aggregate results of Form 36 voters from 75 constituencies were missing.
[173] Reports showing the above discrepancies were availed to counsel,
who were asked to comment on the facts and data reflected therein. (c)
Petitioners’ Submissions
[174] The 3rd Petitioner did not expressly
comment on the results except to note that the report did not directly
address the issue of “rejected votes”. The 1st and 2nd Petitioners
argued in support of the re-tallied results reflected in the Court’s
report. The grounds in support in this regard, may be thus summarized:
1. The report confirmed Petitioners’ allegations that the 1st and 2nd
Respondents did not verify the Presidential election results as required
under the law, and should not have announced the results 59 without
accounting for all electoral areas. This is particularly so in light of
missing Form 34s from 10 polling stations that were highlighted in the
report. The result is that neither the Court nor the Petitioners were
provided with all Form 34s and so the results from IEBC, are unreliable.
2. Since it is the Court, on its own motion, which made the order on
re-tallying the votes in those 22 polling stations, the results
therefrom should now override the results expressly relied on by the 1st
Petitioner. 2. The Court’s report shows that in some instances, the
number of registered votes was not reflected in Forms 36. In other
instances, there were two Forms 36, attributed to the same constituency
and both were counted during the tallying process conducted by the 1st
and 2nd Respondents. 4. Even after the register of voters was closed,
there were instances where voters were still being registered. 5. In
several polling stations, the number of votes cast exceeded the
registered voters as per Forms 34. The results from these polling
stations should have been nullified by the 1st and 2nd Respondents in
accordance with the law, but they were included in the tallying of
results. (d) Respondents Submissions
[175] The re-tally results also
drew comment from the Respondents herein.
The grounds for contest can be summarized as follows: 60 1. The
re-tally report confirms the Respondents’ submissions. The Respondents,
through their responses, had filed evidence in Court answering each and
every one of the discrepancies highlighted in the Court’s report. 2. The
delivery of Forms 34 to the Court and the Petitioners was done
voluntarily and not in response to any request. While there were,
admittedly, some missing Forms 34, which were not provided, this was not
done in bad faith but was a mere oversight, given the limited
time-period the Respondents had to deliver the documents. In any case,
all Forms 34 were used to declare the results. 3. In instances where
there were two Forms 36 provided for the same constituency, these were
provided in a good faith, and were not used in the tallying of results.
In some instances, the 2nd Respondent made errors on Forms 36 during the
counting process, which he then corrected in a second Form 36. Both
Forms were submitted, having been duly signed, in order to show where
the errors were in the initial Form 36. 4. In every instance where there
were more votes cast than registered voters, the Green Book, which
contains the manual register, was availed to the Court for scrutiny. 5.
The Court should guard against the possibility of disenfranchising duly
registered voters who voted on election day, simply because there was
one extra voter on the register. 6. Most of the allegations that the
number of votes cast exceeded the number of registered voters in certain
polling stations, were already addressed in the affidavits annexed to
the 3rd Respondent’s response. 61 7. The 22 constituencies mentioned by
the first Petitioner are spread across the entire country – showing that
no advantage was being sought from a particular candidate’s stronghold.
Therefore, while the IEBC officials may have made some clerical errors,
no mischief or advantage can or should be attributed thereto.
Thus, to a substantial extent, the voting, counting and tallying of
votes was carried out to a high degree of accuracy. This is all that is
required to show that the exercise was carried out well. I. RELIEFS
SOUGHT
[176] The Petitioners entertain the prospect of succeeding in
their petitions, and have made prayers for a wide range of reliefs, as
follows: (a) 1st Petitioner i. a declaration that the Presidential
election held on the 4th of March, 2013 is invalid; ii. a declaration
that the 1st and 2nd Respondents were in breach of Articles 10, 81(e),
86 and 88 of the Constitution of Kenya in relation to the Presidential
election; iii. a declaration that the 1st Respondent was in breach of
Sections 59, 60, 61, 62, 74, 79 and 82 of the Election (General)
Regulations, 2012; iv. a declaration that the 1st and 2nd Respondents’
were in breach of Article 138(3) (c) of the Constitution of Kenya; v. a
declaration that the 2nd Respondent is in breach of Article 75 of the
Constitution of Kenya; 62 vi. a declaration that the 1st and 2nd
Respondents are guilty of offences under the Elections Act, 2011 (Act
No. 24 of 2011); vii. a declaration that the 3rd Respondent did not
receive more than half of the votes cast, at the just-concluded
Presidential election and was, therefore, not validly elected and
declared as President-elect; viii. a declaration that the Petitioner’s
fundamental rights under Articles 35, 38 and 47 of the Constitution of
Kenya were violated during the President elections; ix. an order
compelling the 1st and 2nd Respondents to cancel the Certificate of
Election to President-elect issued to the 3rd Respondent; x. an order
that there be a fresh election for the President of the Republic of
Kenya in strict compliance with the Constitution of Kenya, 2010. xi.
costs of the Petition. (b) 2nd Petitioner i. a declaration that the
absence of a credible Principal Voters Register vitiates the validity of
the Presidential elections of 4th March, 2013; ii. a declaration that
the failure to verify the Presidential votes cast at the polling
stations vitiates the validity of the Presidential election, thereby
rendering it null and void; iii. a declaration that the proclamation by
the 1st and 2nd Respondents, of the 3rd Respondent as President-elect
was invalid and, therefore, the Form 38 Certificate issued to the 3rd
Respondent is invalid. 63 iv. costs of the Petition. (c) 3rd Petitioner
i. a declaration that during the national election held on 4th March,
2013 the percentage of votes received by each candidate in proportion to
the total valid votes counted for purposes of Article 138(4) of the
Constitution of Kenya was as follows: (a) Uhuru Kenyatta 50.51% (b)
Raila Odinga 43.70% (c) Musalia Mudavadi 3.96% (d) Peter Kenneth 0.60%
(e) Abduba Dida 0.43% (f) Martha Karua 0.36% (g) James Kiyiapi 0.34% (h)
Paul Muite 0.10% ii. costs of the Petition. J. GUIDING PRINCIPLES (i)
The Context
[177] This may not be the most complex case, in terms of the
relevant facts and the applicable law; but it is of the greatest
importance for the following reasons: (i) it is the first landmark case
bearing on the early steps to consolidate and set in motion the gains of
a progressive and unique Constitution, which was promulgated on 27th
October, 2010; (ii) since the promulgation of the Constitution, its
“non-majoritarian” elements, such as the 64 Judiciary and the
Independent Commissions, have assumed their special roles; but the
“majoritarian” elements, in the form of a popularly elected Legislature
and Executive, were still in abeyance; (iii) transition from the
little-regulated Executive set-up of the earlier period, to a new one
subject to the established constitutional limitations, is a fateful
process which the people must effect through the electoral process; (iv)
the cardinal role of implementation of the principles and terms of the
Constitution of Kenya, 2010 rests with the Executive Branch, acting
through laws emanating from the Legislature, and subject to the
restraints of the Constitution itself and the law, as superintended by
the Judiciary; and hence the electoral process which now sets the
Presidency afoot, in the provision of national leadership, is all-
important to the people of Kenya; (v) although the Supreme Court has
been in place for about one year-and-a-half, charged with the obligation
to “assert the supremacy of the Constitution and the sovereignty of the
people of Kenya” [The Supreme Court Act, 2011 (Act No. 7 of 2011),
Section 3(a)], it is only now that it has the first opportunity to
consider the vital question as to the integrity of a Presidential
election, and, therefore, the scope for the new Constitution to anchor
its processes on the operations of a lawful Executive Branch; and (vi),
this is the first test of the scope available to this Supreme Court, to
administer law and justice in relation to a matter of the expression of
the popular will – election of the President. This Judgment, therefore,
may be viewed as a baseline for the Supreme Court’s perception of
matters political, as these interplay with the progressive terms of the
new Constitution. It is clear that this Judgment, just as it is
important to all Kenyans in political terms, is no less important to the
Court itself, in terms of the evolution of jurisprudence in the domain
of public affairs. It is particularly so, in the light of Section 3(c)
of the Supreme Court Act, which vests in this Court the obligation to
“develop rich jurisprudence that respects Kenya’s history and traditions
and facilitates its social, economic and political growth.” 65 (ii)
Proof in Election Petition Cases
[178] Mr. Oraro, Senior Counsel for the 1st Petitioner, cited the
English case, Morgan and Others v. Simpson and Another [1974] 3 All ER
722 in support of his submission, with regard to the standards
applicable in cases of this nature. He cited a passage in that decision:
“...an election court was required to declare an election invalid (a)
if irregularities in the conduct of elections had been such that it
could not be said that the election had been conducted as to be
substantially in accordance with the law as to election, or (b) if the
irregularities had affected the results. Accordingly, where breaches of
the election rules, although trivial, had affected the results, that by
itself was enough to compel the Court to declare the election void even
though it had been conducted substantially in accordance with the law as
to elections. Conversely, if the election had been conducted so badly
that it was not substantially in accordance with the law, it was
vitiated irrespective of whether or not the result of the election had
been affected...”
[179] Counsel submitted that the above standard has been adopted in
our laws, and is therefore part and parcel of our local jurisprudence.
He cites section 83 of the Elections Act, 2011 (No. 24 of 2011) which
states: “No election shall be declared to be void by reason of
non-compliance with any written law relating to that election if it
appears that the election was conducted in accordance with the
principles laid down in the Constitution and in that written law or that
the non- compliance did not affect the result of that election.”
[180]
The 1st Petitioner also cited the case of Magara v. Nyamweya (2010) 4
KLR (EP) in which the Court of Appeal asserted the above principle.
[181] The 1st Respondent through learned counsel Mr. Nyaoga, submitted
that 66 the burden of proof lay on the Petitioner. He advanced the
argument that these election petition proceedings, on the basis of the
evidence adduced by the Petitioner, were of a “quasi criminal nature”.
Hence it was his case that the Petitioner alleging these “criminal
offences”, must prove them. The Respondent urged that the standard
should be higher than the balance of probability, but lower than “beyond
reasonable doubt”.
[182] The 2nd Respondent, through learned counsel,
Mr. Kamau Karori, while responding to the Petitioner’s case that the
Voters’ Register was manipulated, submitted that the burden of proof in
showing the alleged manipulation lay firmly with the Petitioner.
[183]
The learned Attorney-General, Prof. Githu Muigai, in execution of his
duty as amicus curiae lent some insight in this regard. He first
distinguished between the burden of proof and the standard of proof,
thus: “burden of proof is concerned with the question, whose duty is it
to place evidence before the Court; while standard of proof is concerned
with, what weight the Court should place on the material fact that is
placed before it”. It was the Attorney-General’s submission that, in an
election petition, the burden of proof lies on both parties.
[184] The
Attorney-General cited the Nigerian case of Abubakar v. Yar’Adua [2009]
All FWLR (Pt. 457) 1 S.C., in which the Court held that the burden is on
the Petitioner, to prove non-compliance with electoral law, and to show
that the non-compliance affected the results of the election.
The same jurisprudence was enunciated in Buhari v. Obasanjo (2005)
CLR 7(k) (SC), also cited by the Attorney-General; the various
components of burden of proof were distinguished, in their shifting
pattern: the burden is on the petitioner to prove non-compliance with
the electoral law; and it then shifts to 67 the Respondent, or the
electoral board, to prove that such non-compliance did not affect the
results of the election.
[185] In Nigeria, it is noted from the
Attorney-General’s submissions, the question of the evidential threshold
is not in the Constitution, but is specified in the statute, the
Elections Act, 2006.
[186] The Attorney-General also relied on a
decision of the Indian Supreme Court, M. Narayan Rao v. G Venkata Reddy
& Another, 1977 (AIR)(SC) 208 in which the following passage
appears: “The charge of commission of corrupt practice has to be proved
and established beyond reasonable doubt like a criminal charge or a
quasi-criminal charge but not exactly in the manner of establishment of
guilt in the manner of criminal prosecution giving the liberty of the
accused to keep mum. The charge has to be proved on appraisal of the
evidence adduced by both parties especially by the election petitioner.”
In Indian jurisprudence the proof required is beyond reasonable doubt,
but not to the level of the criminal standard.
[187] That high standards
of proof are required in cases imputing election malpractice, appears
to be the norm, as is also confirmed in the Zambian case, Akashambatwa
Lewanika & Others v. Fredrick Chiluba [1999] 1 LRC 138.
[188] Even
as learned counsel elucidated the burden of proof in election cases, Mr.
Abdullahi urged the Court to take an additional factor into account, 68
in the case of a Presidential election: the Court should be guided by
restraint – as the question before it was more political than
constitutional-legal.
[189] Mr. Abdullahi, being guided by the American
Supreme Court decision in Bush v. Gore, 531 U.S. (2000), called for
judicial care and restraint in Presidential election disputes.
[190] Mr.
Abdullahi proposed that the standard of proof in claims of impropriety
or illegality in the conduct of Presidential election, should be set
higher than the criminal-trial requirement of “proof beyond reasonable
doubt”.
Counsel’s justification was that judicial intervention ought not, in
principle, to be sustained once the electorate had made their choice by
casting the vote.
[191] Comparative judicial practice on the burden of
proof helps to illuminate this Court’s perceptions, in a case which
rests, to a significant degree, on fact. In a Ugandan election case,
Col. Dr. Kizza Besigye v. Museveni Yoweri Kaguta & Electoral
Commission, Election Petition No. 1 of 2001, the majority on the Supreme
Court Bench held: “....the burden of proof in election petitions as in
other civil cases is settled. It lies on the Petitioner to prove his
case to the satisfaction of the Court. The only controversy surrounds
the standard of proof required to satisfy the Court.”
[192] Similarly in
the Canadian case, Opitz v. Wrzesnewskyj 2012 SCC 55-2012-10-256 it is
thus stated in the majority opinion: “An applicant who seeks to annul an
election bears the legal burden of proof throughout......” 69
[193]
Such a line of judicial thinking is also found in the Nigerian case,
Buhari v. Obasanjo (2005) CLR 7K, in which the Supreme Court stated:
“The burden is on petitioners to prove that non-compliance has not only
taken place but also has substantially affected the result....There must
be clear evidence of non-compliance, then, that the non-compliance has
substantially affected the election.”
The Nigerian Supreme Court further stated: “He who asserts is
required to prove such fact by adducing credible evidence. If the party
fails to do so its case will fail. On the other hand if the party
succeeds in adducing evidence to prove the pleaded fact it is said to
have discharged the burden of proof that rests on it. The burden is then
said to have shifted to the party’s adversary to prove that the fact
established by the evidence adduced could not on the preponderance of
the evidence result in the Court giving judgment in favour of the
party.”
[194] In another Nigerian case, Ibrahim v. Shagari & Others
(1985) LRC (Const.) 1, the Supreme Court held: “[T]he Court is the sole
judge and if it is satisfied that the election has been conducted
substantially in accordance with Part II of the Act it will not
invalidate it. The wording of Section 123 is such that it presumes that
there will be some minor breaches of regulations but the election will
only be avoided if the non-compliance so resulting and established in
Court by credible evidence is substantial. Further, the Court 70 will
take into account the effect if any, which such non- compliance with
[the] provisions of Part II of the Electoral Act, 1982 has had on the
result of the election.... [T]he duty to satisfy the Court that a
particular non-compliance with the provisions of Part II of the
Electoral Act....lies on the petitioner.”
[195] There is, apparently, a
common thread in the foregoing comparative jurisprudence on burden of
proof in election cases. Its essence is that an electoral cause is
established much in the same way as a civil cause: the legal burden
rests on the petitioner, but, depending on the effectiveness with which
he or she discharges this, the evidential burden keeps shifting.
Ultimately, of course, it falls to the Court to determine whether a firm
and unanswered case has been made.
[196] We find merit in such a
judicial approach, as is well exemplified in the several cases from
Nigeria. Where a party alleges non-conformity with the electoral law,
the petitioner must not only prove that there has been non- compliance
with the law, but that such failure of compliance did affect the
validity of the elections. It is on that basis that the respondent bears
the burden of proving the contrary.
This emerges from a long-standing common law approach in respect of
alleged irregularity in the acts of public bodies. Omnia praesumuntur
rite et solemniter esse acta: all acts are presumed to have been done
rightly and regularly. So, the petitioner must set out by raising firm
and credible evidence of the public authority’s departures from the
prescriptions of the law.
[197] IEBC is a constitutional entity
entrusted with specified obligations, to organize, manage and conduct
elections, designed to give fulfilment to the 71 people’s political
rights [Article 38 of the Constitution]. The execution of such a mandate
is underpinned by specified constitutional principles and mechanisms,
and by detailed provisions of the statute law. While it is conceivable
that the law of elections can be infringed, especially through
incompetence, malpractices or fraud attributable to the responsible
agency, it behoves the person who thus alleges, to produce the necessary
evidence in the first place – and thereafter, the evidential burden
shifts, and keeps shifting.
[198] To what standard must such initial
burden be discharged? The practice in this respect varies from one
jurisdiction to another. In some countries, it is held that election
petitions are litigation much in the nature of civil proceedings – and
that the standard of proof should be the same as in civil causes. Thus
in Mauritius, in Jugnauth v. Ringadoo and Others [2008] UKPC 50, the
Judicial Committee of the Privy Council affirmed the decision of the
Supreme Court of Mauritius, nullifying the election of the appellant, a
Member of Parliament and Minister of the Government. The following
passage occurs in the judgment of the Privy Council: “....the
legislature...deliberately chose to approach the matter as one in which
the court should adopt the civil standard of proof. There was no
question of the Court applying anything other than the civil standard of
proof and in particular, no question of the application of an
intermediate standard. It followed that the issue for the election court
was whether the petitioner had established, on the balance of
probabilities, that the election was affected by bribery in the manner
specified in the petition. In practice, as a matter of common sense
rather than law, the Court was unlikely to be satisfied on the balance
of probabilities that there has been bribery without cogent evidence to
that effect. In the instant matter 72 the Supreme Court was correct to
reach its factual conclusions on the balance of probabilities.”
[199] In the Jugnauth Case, the Court observed that election
petitions are civil in nature, and the proper test should be the balance
of probability. The same principle was also stated in the Canadian
case, Opitz (supra).
[200] In certain jurisdictions, a higher standard
of proof has been required, depending on the specific element in the
cause being proved. Thus, in Shri Kirpal Singh v. Shri V.V. Giri (1970)
INSC 191: AIR 1970 SC 2097; 1971(2) SCR 197; 1970(2) SCC 567 the Supreme
Court of India stated: “There can be no doubt that a charge of undue
influence is in the nature of a criminal charge and must be proved by
cogent and reliable evidence, not on the mere ground of balance of
probability but on reasonable certainty that the persons charged
therewith have committed the offence, on the strength of evidence which
leaves no scope for doubt as to whether they have done so. Although
there are inherent differences between the trial of an election petition
and that of a criminal charge in the matter of investigation, the vital
point of identity for the two trials is that the court must be able to
come to the conclusion beyond any reasonable doubt as to the commission
of the corrupt practice.”
[201] Some jurisdictions have adopted a
standard of proof that goes beyond the balance of probability but falls
slightly below proof-beyond-reasonable- doubt. Zambia adopted such a
standard in Lewanika and Others v. Chiluba (1999) 1LRC 138. Five
petitioners challenged the election of the respondent as President, on
18th November, 1996 on the ground that he was 73 not qualified to stand
as a candidate, as neither he nor his parents were citizens of Zambia by
birth or by descent, as required under Article 34(3), Schedule 2 to the
Constitution of Zambia Act, 1991 as amended in 1996. The petitioners
also alleged electoral flaws, including bribery and corruption,
irregularities and flaws in the electoral system; they sought the
nullification of the elections for having been rigged, and being not
free and fair.
The Court thus held, on standard of proof: “[W]e wish to assert that
it cannot be seriously disputed that parliamentary election petitions
have generally long required to be proved to a standard higher than on a
mere balance of probability. It follows, therefore, that in this case
where the petition has been brought under constitutional provisions and
would impact upon the governance of the nation and the deployment of the
constitutional power and authority, no less a standard of proof is
required. It follows also that the issues raised are required to be
established to a fairly high degree of convincing clarity.”
[202] But in
another Zambian case, Anderson Kambela Mazoka and Two Others v. Levy
Patrick Mwanawasa and Two Others SCZ/EP/01/02/03/2002, the Supreme Court
held that the Court, in determining the standard of proof, should take
into account the facts of the particular case: “We accept that the issue
of standard of proof may turn out to be more a matter of words than
anything else. There can be no absolute standard of proof. The degree
must depend on the subject matter. In the case under consideration, the
standard of proof must depend on the allegations pleaded.” 74
[203] The
lesson to be drawn from the several authorities is, in our opinion, that
this Court should freely determine its standard of proof, on the basis
of the principles of the Constitution, and of its concern to give
fulfilment to the safeguarded electoral rights. As the public body
responsible for elections, like other public agencies, is subject to the
“national values and principles of governance” declared in the
Constitution [Article 10], judicial practice must not make it burdensome
to enforce the principles of properly-conducted elections which give
fulfilment to the right of franchise. But at the same time, a petitioner
should be under obligation to discharge the initial burden of proof,
before the respondents are invited to bear the evidential burden. The
threshold of proof should, in principle, be above the balance of
probability, though not as high as beyond-reasonable-doubt – save that
this would not affect the normal standards where criminal charges linked
to an election, are in question. In the case of data-specific electoral
requirements (such as those specified in Article 38(4) of the
Constitution, for an outright win in the Presidential election), the
party bearing the legal burden of proof must discharge it beyond any
reasonable doubt. (iii) The Supreme Court’s Jurisdiction in a
Presidential-election Petition
[204] The Court’s jurisdiction in the
consolidated Petitions was not an issue for determination per se.
That the parties chose to move the Court to determine the validity of
the Presidential election was an indication that they had no doubts as
to the Court’s jurisdiction. However, the gist of some of the prayers in
the Petition, and of the submissions made in support, raised a question
as to the nature and extent of the Court’s jurisdiction.
[205] It is
clear that the Supreme Court’s jurisdiction in a Presidential election
is both original and exclusive – a position well clarified in our
Advisory 75 Opinion No. 2 of 2012, In the Matter of an Application for
Advisory Opinion under Article 163(6) of the Constitution of Kenya. No
Court other than the Supreme Court has the jurisdiction to hear and
determine disputes relating to an election for the office of President.
[206] This jurisdiction, however, is not boundless in scope: it is
circumscribed in extent and in time. Limited in extent, in that it
relates only to an inquiry into the legal, factual and evidentiary
questions relevant to the determination of the validity or invalidity of
a Presidential election.
[207] The Supreme Court cannot roll over the
defined range of the electoral process like a colossus. The Court must
take care not to usurp the jurisdiction of the lower Courts in electoral
disputes. It follows that the annulment of a Presidential election will
not necessarily vitiate the entire general election. And the annulment
of a Presidential election need not occasion a constitutional crisis, as
the authority to declare a Presidential election invalid is granted by
the Constitution itself.
[208] A petitioner against the declaration of a
candidate as President-elect, under Articles 163(3)(a) and 140 of the
Constitution as read together with the provisions of the Supreme Court
Act, 2011 (Act No. 7 of 2011) and the Supreme Court (Presidential
Elections) Rules, 2013, is required to present a specific, concise and
focused claim which does not purport to extend the Supreme Court’s
jurisdiction beyond the bounds set out in the Constitution. It follows
that the Court will only grant orders specific to the Presidential
election.
[209] The Supreme Court’s jurisdiction is also limited in
time-span. A petition contesting the election of a President does not
set off an open-ended course of 76 litigation without time-frames.
The applicable time-frame, within which any challenge to the election
must be filed, served, heard and determined, is prescribed under the
Constitution. Article 140(1) and (2) of the Constitution provide as
follows: “(1) A person may file a petition in the Supreme Court to
challenge the election of the President-elect within seven days after
the date of the declaration of the results of the Presidential election.
“(2) Within fourteen days after the filing of a petition under clause
(1), the Supreme Court shall hear and determine the petition and its
decision shall be final.”
[210] Applying the foregoing provision, and in
exercise of powers conferred by Article 163(8) of the Constitution and
Section 31 of the Supreme Court Act, 2011 the Court has recently made
and published the Supreme Court (Presidential Election Petition) Rules,
2013. These Rules constitute the Court’s detailed norms for
operationalising the terms of Article 140 of the Constitution.
[211] The
fourteen-day limit within which the Court must hear and determine a
Presidential election petition, starts counting immediately upon filing.
By Rule 7, the Petitioner has a period of three days within which to
serve the Respondent, after filing. Rule 8 allows the Respondent three
days within which to file a response, following the service. Rule 9
provides for a pre-trial conference, nine days from the date of filing
the petition. The Court, thus, has three days within which to examine
the pleadings, before the pre-trial conference takes place. 77
[212] It
is our perception that an intending Petitioner will utilize the seven-
day window given by the Constitution, following the declaration of
election- outcome, to prepare the pleadings. Likewise, a Respondent will
utilize the three days afforded by the Rules, to lodge a response to
the Petitioner’s allegations.
[213] The purpose of the pre-trial conference is set out in Rule 10:
this is a preparatory forum to lay the ground rules for the expeditious,
fair and efficient disposal of the petition. The pre-trial conference
enables the Court, upon hearing the parties and, if need be, on its own
motion, to make appropriate orders and give directions for ensuring fair
determination of the dispute. By Rule 10(1)(f), the Court is empowered
to give preparatory directions touching on the scheme of evidence: the
filing and service of any further affidavits, or the calling of some
particular kind of evidence. The issuance of such directions is attuned
to the constitutional imperatives of the forthcoming proceedings:
efficiency, expedition, fairness, finality. By Rule 11, the Court “shall
within two days of the pre-trial conference commence the hearing of the
petition.”
[214] The requirements of such a disciplined trial-framework
fully justifies the unlimited exercise of the Court’s discretion in
making orders that shape the course of the proceedings. Thus, in the
instant case, the Court did dismiss two applications, in Rulings made
during the pre-trial conference. One of these was for an order of
production of certain documents; the other was in respect of a “Notice
to Produce” a marked voter register found at the numerous polling
stations right across the country. The Court also made an order to
exclude from the proceedings a “further affidavit” which had just been
filed by the 1st Petitioner; the said affidavit sought to introduce new
material well after the filing of the petition. 78
[215] The reasons for the Court’s decision to disallow such new
matter are set out in the Ruling, as delivered and signed. The 2nd
Respondent had declared the results of the Presidential election on 9th
March, 2013. By Article 140 of the Constitution, any intending
petitioner had up to seven days to prepare and file the petition. The
1st Petitioner elected to file his petition on 16th March, 2013 and,
thenceforth, the fourteen-day period for the hearing and conclusion of
the proceedings, started running. Yet, six days later, on 23rd March,
2013, just two days before the pre-trial conference, the 1st Petitioner
filed the “further affidavit” in question. It emerged as a fact, that
the further affidavit, as the Respondents averred, was attempting to
introduce new matter into the original petition – by way of averments.
The merits of this belated move were canvassed at the pre-trial
conference on 25th March, 2013; and the Court ruled on this question on
26th March, 2013, excluding the “further affidavit.”
[216] The primary justification for the rejection of the “further
affidavit” lies in the requirements of the disciplined trial process
required under the Constitution. The Court, besides, had taken into
account all the relevant circumstances. Were the Court to admit the new
evidence, then ends of justice would demand that the Respondents be
granted reasonable time to file a response to the “further affidavit”.
The Respondents urged that they needed the same length of time it had
taken the 1st Petitioner to file the “further affidavit,” to make a
response – six days as from 27th March, 2013. Even had the Court granted
only half that time, the main hearing of the Petition would not have
started before 30th March, 2013: and the Supreme Court would,
consequently, have failed to hear and determine the Petition within 14
days as required by the Constitution. Allowing the “further affidavit”
would have led to consequences not only subverting the Constitution
itself, but most significantly, precipitating a crisis in the operations
of the Executive Branch. 79
[217] The rigid time-frame for the
resolution of Presidential-election disputes was not, in our opinion,
conceived in vain at the time of the constitution- making process. From
the terms of Article 140 of the Constitution, it is clear that
expedition is of the essence, in determining petitions relating to
Presidential elections. As the electoral process had, in this case, led
to the declaration of a winner, but one who could not assume office
pending the determination of the petition, the protracted holding-on of a
President-elect, as well as a retiring President, would, in our
opinion, present a state of anticipation and uncertainty which would not
serve the public interest.
Expedition in the resolution of the dispute was all-important: if the
Court affirmed the election of the President-elect, then the transition
process would be responsibly accomplished; and if the Court annulled
the election, the electorate would pacifically attune itself to the
setting for fresh election – to be held within sixty days.
[218]
Notwithstanding such considerations of merit, which led the Court to
exclude belatedly-introduced papers, counsel argued on the basis of
Article 159(2)(d) of the Constitution, which thus provides: “In
exercising judicial authority, the courts and tribunals shall be guided
by the following principles – ... (d) justice shall be administered
without undue regard to procedural technicalities....” The essence of
that provision is that a Court of law should not allow the prescriptions
of procedure and form to trump the primary object, of dispensing
substantive justice to the parties. This principle of merit, however, in
our opinion, bears no meaning cast-in-stone and which suits all
situations of dispute resolution. On the contrary, the Court as an
agency of the processes 80 of justice, is called upon to appreciate all
the relevant circumstances and the requirements of a particular case,
and conscientiously determine the best course. The time-lines for the
lodgement of evidence, in a case such as this, the scheme of which is
well laid-out in the Constitution, were in our view, most material to
the opportunity to accord the parties a fair hearing, and to dispose of
the grievances in a judicial manner. Moreover, the Constitution, for
purposes of interpretation, must be read as one whole: and in this
regard, the terms of Article 159(2)(d) are not to be held to apply in a
manner that ousts the provisions of Article 140, as regards the
fourteen-day limit within which a petition challenging the election of a
President is to be heard and determined. (iv ) Judicial Restraint
[219]
Learned counsel, Mr. Ahmednasir Abdullahi has called for the adoption
of restraint by the Court, in this Presidential-election matter. He
urges that the facts and special circumstances of this case require
restraint, in the judicial approach.
[220] Counsel proceeded from the following foundation of fact: the
Presidential election took place in a context of perfect peace; as many
as 86% of the electorate – a high turnout by any standards – did vote;
no case of loss of life in the course of the election was reported. So,
the will of the electorate, by which the 3rd Respondent was entrusted
with the Presidential mandate, ought to be upheld. [221] In such
conditions, Mr. Abdullahi urged, the Court should in principle desist
from intervention, but should instead affirm the principle of restraint.
Learned counsel submitted that Kenya is at a sensitive stage of
establishing 81 the institutions of democracy and constitutionalism, and
that this requires a certain degree of public confidence which, for the
judicial process, is a treasure, that can only be nurtured through
restraint, where the electoral will has been made known.
[222] Counsel
recalled, as a comparative perspective, that judicial restraint had
similarly been urged in the American case, Bush v. Al Gore 531 U.S.
(2000), in aid of the argument that even though the Supreme Court has
jurisdiction to invalidate a Presidential election by virtue of Article
140 of the Constitution, restraint was paramount. For, the issues
involved are essentially political in nature. Counsel invoked the
following passage in the American case: “None are more conscious of the
vital limits on judicial authority than are the members of this Court,
and none stand more in admiration of the Constitution’s design to leave
the selection of the President to the people...and to the political
sphere. When contending parties invoke the process of the courts,
however, it becomes our unsought responsibility to resolve the federal
and constitutional issues which the judicial system has been forced to
confront.”
[223] To the same effect, learned counsel cited the South African
case, Minister of Health v. Treatment Action Campaign 2002 (5) SA 721
(CC), in which it was thus held: “Courts are ill-suited to adjudicate
upon issues where court orders could have multiple social and economic
consequences for the community. The Constitution contemplates rather a
restrained and focused role for the courts, namely, to require the state
to take measures to meet its constitutional 82 obligations and to
subject the reasonableness of these measures to evaluation. Such
determination of reasonableness may in fact have budgetary
implications.... In this way the judicial, legislative and executive
functions achieve appropriate constitutional balance.”
[224] It was
counsel’s argument that, by such restraint, the Court would be
contributing to national stability by preserving its “political capital”
for those rare occasions when, as history unfolds, it may become
appropriate to deploy it. And so, for day-to-day situations, the Supreme
Court ought to limit the “number of major principled interventions” it
can make [see A.M. Bickel in Harvard Law Review, Vol. 75 (1961), pp.40,
75].
[225] In agreement with the foregoing line of reasoning, learned
counsel Mr. Ngatia, for the 3rd Respondent, submitted that: “what is
before the Court is a political contest”; “for all politicians, their
business is to offer themselves for elections; that of IEBC is to
conduct elections; that of the people is to decide.” Counsel submitted
that in an electoral contest such as the instant one, “the Court should
have a very limited role.”
[226] In this inaugural Supreme Court which
is barely two years old, and which is at the centre of the governance
processes established under the Constitution of Kenya, 2010, it is the
first time the Judges are called upon to declare their perception of
their role in a fundamentally political-cum- constitutional process. It
is particularly significant that the organ which is the subject of
dispute is the most crucial agency of the Executive Branch, namely the
Presidency. The new Constitution will not be fully operational, without
the Presidential office being duly filled, as provided by the
Constitution and the ordinary law. 83
[227] But the Constitution not only represents a special and historic
compact among the people; it expressly declares all powers of
governance to emanate from the people, and to be for service to the
people. Article 1 of the Constitution thus provides: “(1) All sovereign
power belongs to the people of Kenya and shall be exercised only in
accordance with this Constitution. “(2) The people may exercise their
sovereign power directly or through their democratically elected
representatives.”
[228] What is now before the Court is a case in which
the people, as makers and main beneficiaries of the Constitution, have
employed the prescribed machinery, and cast their votes, in exercise of
their political will to elect the leading member of the Executive
Branch.
[229] What principle ought to guide this Court in its attempts
to resolve the electoral question?
[230] Without as yet deciding the
main question in the contest, we express the opinion that, in the
special circumstances of this case, an insightful judicial approach is
essential. There may be an unlimited number of ways in which such an
approach is to guide the Court. But the fundamental one, in our opinion,
is fidelity to the terms of the Constitution, and of such other law as
objectively reflects the intent and purpose of the Constitution. (v)
Technology in Kenya’s Electoral Process
[231] The main Petition before
this Court is founded, significantly, on the contention that the
Petitioner was prejudiced by an inconsistent application of 84
electronic devices and, in particular, by IEBC’s abandonment of such
technology and resort to the manual electoral procedure. While there is
sufficient evidence to guide the Court in this matter, it is apposite to
set out relevant principles on the application of electronic technology
in elections.
[232] Failure of technology is relied upon by the
Petitioners, on the footing that it disrupted the transmission of
election results, and so, these results ceased to be in keeping with the
secure standards required by law.
The Petitioners contend that section 39 of the Elections Act, 2011 as
read with Regulation 82 of the Elections (General) Regulations, 2012
creates a mandatory obligation to provide for the electronic
transmission of the results.
[233] We take judicial notice that, as with
all technologies, so it is with electoral technology: it is rarely
perfect, and those employing it must remain open to the coming of new
and improved technologies. Analogy may be drawn with the traditional
refereeing methods in football which, as their defects became apparent,
were not altogether abandoned, but were complemented with
television-monitoring, which enabled watchers to detect errors in the
pitch which had occurred too fast for the referees and linesmen and
lineswomen to notice.
[234] In the instant case, there is evidence that
the EVID and RTS technologies were used in the electoral process at the
beginning, but they later stalled and crashed. Different reasons explain
this failure but, by the depositions of Dismus Ong’ondi, the failure
mainly arose from the misunderstandings and squabbles among IEBC members
during the procurement process – squabbles which occasioned the failure
to assess the integrity of the technologies in good time. 85 It is,
indeed, likely that the acquisition process was marked by competing
interests involving impropriety, or even criminality: and we recommend
that this matter be entrusted to the relevant State agency, for further
investigation and possible prosecution of suspects.
[235] But as regards the integrity of the election itself, what
lawful course could IEBC have taken after the transmission technology
failed? There was no option, in our opinion, but to revert to the manual
electoral system, as was done.
[236] We note from the evidence that the
said manual system, though it did serve as a vital fall-back position,
has itself a major weakness which IEBC has a public duty to set right.
The ultimate safeguard for the voter registration process, namely “the
Green Book”, has data that is not backed-up, just in case of a fire, or
other like calamity. We signal this as an urgent item of the agenda of
the IEBC, and recommend appropriate redressive action.
[237] From case law, and from Kenya’s electoral history, it is
apparent that electronic technology has not provided perfect solutions.
Such technology has been inherently undependable, and its adoption and
application has been only incremental, over time. It is not surprising
that the applicable law has entrusted a discretion to IEBC, on the
application of such technology as may be found appropriate. Since such
technology has not yet achieved a level of reliability, it cannot as yet
be considered a permanent or irreversible foundation for the conduct of
the electoral process. This negates the Petitioner’s contention that,
in the instant case, injustice, or illegality in the conduct of election
would result, if IEBC did not consistently employ electronic
technology. It follows that the Petitioner’s case, insofar as it 86
attributes nullity to the Presidential election on grounds of failed
technological devices, is not sustainable. (vi) Institutional
Independence, Discharge of Public Responsibility, and Exercise of
Discretion
[238] A major element in the Petitioner’s case turns on the
Constitution’s conferment upon IEBC of institutional independence, as a
basis for the discharge of its public, electoral responsibility. How
ought the responsibility to be exercised, and what is the role of
discretion in this?
[239] The Petitioners impugn the manner in which IEBC conducted the
tallying of votes at the National Tallying Centre, and in particular,
the fact that the Commission had, at some stage, restricted the
operations of political party agents during the tallying. The 1st and
2nd Respondents admitted having imposed certain limitations on the said
agents, but averred that such action was taken in exercise of essential
discretion. These Respondents aver that, sometime in the evening of 5th
March, 2013, the political party agents inside the tallying hall became
rowdy and quarrelsome, and engaged IEBC staff in paralyzing
confrontations. IEBC responded to the mischief by taking the decision to
relocate the party agents to a boardroom in the auditorium at the
National Tallying Centre, where they were regularly supplied with the
forms and documents necessary for the verification of vote-tallies.
[240] Was this a lawful exercise of discretion by IEBC? Did such
exercise of discretion vitiate the quality of tallying, and of the
electoral process, so as to lead to the conclusion that the electoral
process was not lawfully conducted?
[241] The Constitution, by Article
138(3)(c), takes cognizance of the fact that the counting of votes takes
place at the polling stations, after which IEBC 87 tallies, verifies
and declares the results. On this basis, it is clear that IEBC has the
mandate to count, tally and verify the voting results. However,
Regulation 85(1)(e) of the Elections (General) Regulations, 2012 allows
political party agents to be present at the Tallying Centre.
[242] What is the legal and public standing of the party agents at
the National Tallying Centre? In our opinion, it is all about the public
perception, and legitimacy, which are of the essence in a distinctly
political process such as a Presidential election. IEBC is expected to
operate transparently, without retreating from the public forum of
visibility, and without disengaging from the stakeholders of the
electoral process. However, as there is no sharp definition of the mode
of such engagement, IEBC is to be guided by the “national values and
principles of governance” declared in the Constitution, namely “good
governance, integrity, transparency and accountability” [Article
10(2)(c)].
[243] Such values, in the context of a large-scale exercise
such as the Presidential election, will operate optimally only in
conditions of good order, peace and security; and it is in the first
place the responsibility of the machinery of IEBC to ensure that such
conditions prevail. Discretion is of the essence, in the exercise of
such responsibility: and it follows, as the basic evidence of the state
of affairs at the National Tallying Centre was not contested, that IEBC,
indeed, had an obligation to resolve any kind of impasse afflicting the
tallying of Presidential-election votes.
[244] This Court has had
occasion, in the past, to pronounce itself on the proper functioning of
the various independent Commissions and agencies established under the
Constitution. The following two passages in the Court’s 88 Ruling, from
In the Matter of the Interim Independent Electoral Commission, Sup. Ct.
Const. Application No. 2 of 2011, are apposite: i. “[It is] a matter
[of] which we take judicial notice, that the real purpose of the
‘independence clause’ with regard to [the] Commissions and independent
offices established under the Constitution, was to provide a safeguard
against undue interference with such Commissions or offices by other
persons, or other institutions of government.” ii.
“[While] bearing in mind that the various Commissions and independent
offices are required to function free of subjection to ‘direction or
control by any person or authority’, we hold that this expression is to
be accorded its ordinary and natural meaning and it means that the
Commissions and independent offices, in carrying out their functions,
are not to take orders or instructions from organs or persons outside
their ambit.”
[245] From the principles we have set out, and from the
evidence on record, we are able to dispose of the issue regarding the
tallying of votes at the National Tallying Centre. We must come to the
conclusion that tallying was indeed conducted in accordance with the
law, and the relocation of political party agents did not undermine the
credibility of the tallying, nor provide a basis for annulling the
outcome of the Presidential election.
[246] A related claim by the
Petitioner is that there were instances in which the vote-tallying
operation inflated the 3rd Respondent’s votes, while deflating the
Petitioner’s. What is offered as proof of this assertion is only the 89
apprehension that the initial electronic vote-transmission had
maintained a suspect, steady differential between the two sets of
tallies – and that this suggested manipulation and impropriety on the
part of IEBC. The Petitioner, besides, sought to introduce belatedly,
during the submissions, certain information suggesting mismatches
between the contents of Forms 34 and 36 used at the National Tallying
Centre. Hardly any matter of significance, at this stage, came before
the Court such as would alter the thrust of the overall evidence and the
submissions on law; and we must hold that no challenge to the tallying
process has been made such as to lead to an order of annulment. (vii)
The Voter Register: Accuracy, Credibility, Verifiability – and
Implications for Validity of Election
[247] This Court will not, as already stated, make such orders or
grant such reliefs as would have the effect of precipitating conflicts
between its jurisdiction and that of other Courts. However, as regards
elections that run on common voter rolls and common management settings,
the Court may inquire into any allegations of voter-registration
malpractices, where such are said to affect the validity of a
Presidential election. Such, indeed, are the allegations by the 1st
Petitioner, regarding the credibility of the voter register that was
used during the elections of 4th March, 2013.
[248] The 1st and 2nd
Petitioners’ cases turn on the validity or invalidity of the “Principal
Register of Voters.” The point was taken up in evidence, and was
substantially canvassed in the submissions. What is the “Principal
Register of Voters”? In the light of the provisions of the Constitution
[Articles 38(3) and 83] and of the Elections Act, 2011 [Sections 2, 3,
4], and of the evidence adduced in Court, we must conclude that such a
register is not a single document, but is an amalgam of several parts
prepared to cater for divers 90 groups of electors. The number of parts
of a register and the diversity of electors for whom it is prepared, is
dictated by law, and the prevailing demographic circumstances of the
country’s population. The register can also take several forms, as
contemplated by Section 2 of the Elections Act, which stipulates that
such a register “includes a register compiled electronically.”
[249] The
multiplicity of registers is a reality of Kenya’s voter registration
system which is recognized in law and widely acknowledged in practice.
The register once developed and finalized, is disaggregated and
dispersed to various electoral units, to facilitate the process of
voting. Such units include the polling stations, the wards, the
constituencies, the counties, and even the Diaspora voting centres.
[250] It is plain to the Court that the argument of the Petitioners
that the Presidential elections of 4th March, 2013 could only have been
based on the BVR element of the Principal Register of Voters, is not
tenable; nor is it tenable to contend that the BVR Register all by
itself, was the Principal Register of Voters.
[251] To guarantee the
credibility of the voter register, the agency entrusted with
responsibility (IEBC) for voter registration must ensure as follows: (a)
all those who turn out to register are qualified to be registered, in
accordance with the constitutional and legal requirements; (b) all those
who turn out to register are actually registered and their particulars
accurately captured; (c) the administrative arrangements put in lace to
facilitate the registration process are simple, transparent and 91
accessible; (d) the public and political actors are kept informed of the
various steps in the register-preparation process; (e) the resultant
register is verifiable.
[252] We are inclined to accept the explanations
given by the 1st and 2nd Respondents, of the mode of compilation of the
voters’ roll. The depositions of the 2nd Respondent and of Immaculate
Kassait, and especially when taken alongside the submissions of learned
counsel, Mr. Nyamodi, have conveyed a credible account on the manner in
which the voters’ register used in the 4th March, 2013 Presidential
election, was prepared. The legal burden of showing that the voters’
register as compiled and used, was in any way in breach of the law, or
compromised the voters’ electoral rights, was not, in our opinion,
discharged by the Petitioners.
[253] An intriguing point about the
integrity of the voters’ register was as regards a “Special Register”,
which shows different numbers of voters at different times (31,318 at
one remove, and 36,236 at another remove). It was deponed in the
affidavit of Winifred Guchu, that the “Special Register” had been
created to provide for persons whose features could not be captured by
the BVR device.
Counsel for the 1st Petitioner had urged that the “Special Register”
was not only irregular in character, but that it had been used
exclusively in the stronghold voting areas of the 3rd Respondent. This
serious allegation, which could well taint the credibility of the
election, was stoutly contested by learned counsel, M/s. Nyaoga, Nyamodi
and Nani for the 1st and 3rd Respondents who relied on the affidavit
evidence of Dismus Ong’ondi and Immaculate Kassait. 92
[254] On the
basis of the evidence on record, and of the merits of the submissions by
counsel, we find no mystery about the “Special Register”, which was
indeed used throughout the country, in diverse electoral areas. We also
found no proof that the Special Register served any improper cause, in
favour of any of the candidates.
[255] It was urged for the 1st
Petitioner, that the 1st and 2nd Respondents had compiled the “Green
Book” which was not provided for in the law – and that the Green Book
undermined both the credibility and the legality of the registration
process. In our finding, from the evidence, the “Green Book”, though not
provided for in law, is a primary document that was used by the 1st
Respondent to originate the primary register of voters, which later
evolved into a Provisional Register, and then a Final Principal
Register. It is not apparent to us that such an original record, the
“Green Book,” employed by IEBC, required to be provided for by law.
[256] The 1st Petitioner also cited variations in the numbers of
registered voters, as a factor of illegality in the conduct of the
Presidential election. Learned counsel, Mr. Oraro submitted that at the
close of the register on 18th December, 2012 the total number of
registered voters was 14,333,339; but that at the time of gazettement,
the number was shown as 14,352,455. We have, however, found no major
anomalies between the total number of registered voters and the total
tally in the declaration of Presidential-election results made by the
2nd Respondent on 9th March, 2013. Although, as we find, there were many
irregularities in the data and information-capture during the
registration process, these were not so substantial as to affect the
credibility of the electoral process; and besides, no credible evidence
was adduced to show 93 that such irregularities were premeditated and
introduced by the 1st Respondent, for the purpose of causing prejudice
to any particular candidate.
[257] These findings lead us to the conclusion that the voter
registration process was, on the whole, transparent, accurate, and
verifiable; and the voter register compiled from this process did serve
to facilitate the conduct of free, fair and transparent elections.
(viii) The Question of “Rejected Votes”
[258] From the submissions of
counsel, it emerged that “rejected votes” are marked ballot papers that
fail to comply with the approved marking format, or in some way infringe
the prescribed vote-casting standards. Such votes, at the time of
counting, are not tallied to the advantage of any candidate, but are
accumulated separately and numbered in the category of “rejected votes”.
[259] Yet, by Article 138(4) of the Constitution it is provided: “A
candidate shall be declared elected as President if the candidate
receives – (a) more than half of all the votes cast in the election; and
(b) at least twenty-five per cent of the votes cast in each of more
than half of the counties.”
[260] What are “all the votes cast”? Do
these include even the “rejected votes”, which, of course, were cast? Or
are they limited to the properly- marked ballots which figured in the
vote-tally for the individual candidates? 94
[261] The expression “all
the votes cast,” presents a problem of interpretation – because the
Court has to consider the prevailing position under the earlier
instrument, the Constitution of Kenya, 1969. The corresponding provision
in that Constitution provided as follows [Section 5 (5)(e)]: “the
candidate for President who receives a greater number of valid votes
cast in the presidential election than any other candidate who, in
addition, receives a minimum of twenty-five per cent of the votes cast
in at least five of the eight provinces shall be declared to be elected
as President”.
[262] Is it intended, in the Constitution of Kenya, 2010 that the
expression “more than half of all the votes cast” should mean,
literally, all the ballot papers that were marked and cast into the
ballot box? Or should it mean only all the valid votes that were cast,
and were counted in favour of one candidate or another?
[263] This
question became contentious because the 3rd Petitioner raised it; but
other parties then latched on to it. Counsel for the 3rd Respondent
contested all expansive interpretation of the phrase “all the votes
cast,” on the basis that his client would be the loser, while the
Petitioner would gain. It was significant to the 3rd Respondent for the
reason, as he believed, that if all the “rejected votes” were included
in the computation of vote-tally percentages, then it would raise the
1st Petitioner’s percentage-tally towards the 50% mark, and lower his
own tally to a figure below 50% – the direct effect being that the Court
would have to order a run-off election between the two leading
candidates. Not surprisingly, a Petitioner in Petition No. 3 of 2013 had
moved 95 the Court not only to exclude the “rejected votes” in the
Presidential-election tally, but to go further and, on that basis, order
a re-calculation and re-tally of the votes properly attributable to
each of the candidates. His hopes were that the Court would, in this
way, reach a finding that the 3 rd Respondent’s percentage vote-tally
was significantly above 50%. We have already held, however, that such a
process of re-tallying of votes, re-computing and re- assignment of
value, falls beyond the election-contest mandate of this Court, and is
excluded by the “rule of remoteness”.
[264] The Petitioners in Petition No. 3 of 2013 argued their case on
the basis of the Elections (General) Regulations, 2012 – Regulations 71,
73, 77 and 78. They urged that these Regulations draw a distinction
between the words “ballot”, and “vote”, even though these were sometimes
used interchangeably. Counsel urged that the terms “ballot” and “ballot
paper” describe the paper containing the names of the candidates in
relation to which the voter expresses a preference through the vote – so
that the “vote” is a ballot paper that has been marked to show a
preference. On the basis of Regulation 78(2), learned counsel, Mr.
Regeru, urged that a “rejected ballot paper” is null and void: and so,
all rejected ballots should not give the basis for determining the
winner of an election, at any stage whatsoever.
[265] The Petitioners in
Petition No. 3 of 2013 relied on the terms of the Elections Act, 2011;
these define ballot paper as – “[a] paper used to record the choice made
by a voter and shall include an electronic version of a ballot paper or
its equivalent for the purposes of voting.” They submitted that a
ballot paper becomes a vote only once it expresses a preference for, or
against a candidate; and the term “rejected vote” is, 96 therefore, a
misnomer: what the law contemplates is a “rejected ballot paper,” and
not a “rejected vote”; a ballot paper once rejected, or declared void by
law, is incapable of expressing any preference for, or against a
candidate. On this account, it was urged, invalid ballot papers cannot
be introduced into the percentage-vote tallying process.
[266] Learned
counsel for the Petitioners in Petition No. 3 of 2013 introduced the
comparative judicial practice in electoral matters, in support of their
case. They invoked the Seychelles case, Popular Democratic Movement v.
Electoral Commission, Const. Case No. 16 of 2011 which had come up
before the Constitutional Court; and Burhan, J held that: “rejected
ballot papers are not to be counted as ‘votes’; and therefore the term
‘votes cast’ cannot and will not include ‘rejected’ ballot papers.”
[267] The 1st and 2nd Respondents’ answer was that, in using the
“rejected votes” in the calculation of threshold-percentages in the
Presidential election vote-tally, they had acted in good faith, in
particular as the relevant provisions of the Constitution (Articles
86(b) and 138(4)) did not expressly provide that “rejected votes” should
not be counted or considered in the computation of percentages as
envisaged.
[268] Conceding that there is an uncertainty as to the effect
of the expression “all the votes cast” in Article 138(4) of the
Constitution, the 1st and 2nd Respondents called upon this Court to
provide a guiding interpretation.
[269] One line of submissions made in
Court is that the expression “all votes cast”, as used in Article 138(4)
of the Constitution as read together with the 97 Elections Act, 2011
and the Elections (General) Regulations, 2012 requires a broad,
purposive interpretation in the context of constitutional principles;
and that this will lead to the exclusion of “rejected votes” in the
computation of the percentage-vote requirement.
[270] There is a
contrasting line of submission by the 4th and 5th Petitioners: that
Article 138(4) of the Constitution entails no ambiguity, and that a
literal interpretation is to be preferred; and the consequence is an
inclusion of the “rejected votes” in the computation of the winning
percentage-threshold.
[271] Neither the Constitution nor the Elections
Act, 2011 defines the term “rejected votes”. The Elections (General)
Regulations, 2012, while providing for the “spoilt ballot paper” and the
“disputed vote”, does not define the term “rejected vote”: but it sets
out the criteria upon which a ballot may be “rejected”; and although a
Regulation bears the rubric “rejected ballot papers” in the marginal
note, its provisions only indicate the circumstances in which a vote
becomes invalid.
[272] The interpretation section of the Elections Act states that
‘ballot paper’ “means a paper used to record the choice made by a voter
and shall include an electronic version of a ballot paper or its
equivalent for purposes of electronic voting”. The Elections (General)
Regulations, 2012 defines ‘rejected ballot paper’ as a ballot paper
rejected in accordance with Regulations 77 and 78.
[273] Regulation 77
of the Elections (General) Regulations, 2012 which relates to the
rejection of ballot papers, thus provides: “(1) At the counting of votes
at an election, any ballot paper – 98 (a) which does not bear the
security features determined by the Commission; (b) on which votes are
marked, or appears to be marked against the names of, more than one
candidate; (c) on which anything is written or so marked as to be
uncertain for whom the vote has been cast; (d) which bears a serial
number different from the serial number of the respective polling
station and which cannot be verified from the counterfoil of ballot
papers used at that polling station; or (e) is unmarked, shall... be
void and shall not be counted.”
[274] The expression “rejected ballot
paper” may be considered alongside “spoilt ballot paper” which is
provided for in Regulation 71: “A voter who has inadvertently dealt with
his or her ballot paper in such a manner that it cannot be conveniently
used as a ballot paper may, on delivering it to the presiding officer
and proving to the satisfaction of such officer the fact of the
inadvertence, obtain another ballot paper in the place of the ballot
paper so delivered and the spoilt paper shall be immediately cancelled
and the counterfoil thereof marked accordingly.” 99
[275] The law, thus,
is clear: the “spoilt ballot paper” will not find its way into a ballot
box – and so, it does not count as a vote.
[276] Regulation 78 provides
for yet another category of votes, known as the “disputed vote”. It is
thus provided [Reg. 78(2)]: “The presiding officer shall mark every
ballot paper counted but whose validity has been disputed or questioned
by a candidate or an agent with the word ‘disputed’ but such ballot
paper shall be treated as valid for the purpose of the declaration of
election results at the polling station.”
[277] The comparative experience shows that different countries refer
to votes cast by different terms, and assign differing consequences to
the contrasting categories of votes. In countries such as Ghana, Cyprus
and Portugal, the winner in an election is determined only by the valid
votes cast. Under the Constitution of Seychelles, the broad term “votes
cast”, just as in Kenya, has been adopted; and it became necessary for
the Constitutional Court, in Popular Democratic Movement v. Electoral
Commission (supra) to hold upon a literal interpretation, that “votes
cast” included both spoilt votes and valid votes. Objections were
raised, and this matter came before the Court of Appeal, which
overturned the decision, and held that the term “votes cast” must be
construed to mean only valid votes cast. The Court of Appeal remarked
that, to count spoilt votes and ascribe to them the quality of valid
votes, is improper as it entails converting the “latent vote” of the
elector into a “patent vote” – and such an approach would render
meaningless the distinction between spoilt votes and valid votes. 100
[278] The most striking example of a departure from the foregoing line
of reasoning is found in the Constitution of Croatia, Article 95 of
which provides that “the President shall be elected by a majority of all
electors who voted”, thus in the tallying of votes, invalid votes are
taken into account.
[279] By Article 82(d) of the Constitution of Kenya,
Parliament is empowered to enact legislation to provide for the conduct
of elections and referenda, and for the regulation and efficient
supervision of elections. Parliament did enact the Elections Act, 2011
(Act No. 24 of 2011), which confers upon IEBC the power to make
regulations for the conduct of elections. The Act (Section 109(1)(p))
provides that IEBC may make Regulations to: “prescribe the procedure to
be followed in the counting of votes and the circumstances in which
votes may be rejected by a returning officer as being invalid”.
[280] The Regulations made by IEBC have no provision for “rejected
votes”, though they provide for “rejected ballot papers”, “spoilt ballot
papers”, and “disputed votes”. It is clear that “spoilt ballot papers”
are those which are not placed in the ballot box, but are cancelled and
replaced where necessary, by the presiding officer at the polling
station. This differs from the “rejected ballot papers” which, although
placed in the ballot-box, are subsequently declared invalid, on account
of certain factors specified in the election regulations – such as
fraud, duplicity of marking, and related shortfalls.
[281] No law and no
Regulation brings out any distinction between “vote” and “ballot
paper”, even though both the governing statute and its Regulations have
used these terms interchangeably. We have to draw the inference that 101
neither the Legislature, nor IEBC, had attached any significance to the
possibility of differing meanings; which leads us to the conclusion
that a ballot paper marked and inserted into the ballot-box, has
consistently been perceived as a vote; thus, the ballot paper marked and
inserted into the ballot-box will be a valid vote or a rejected vote,
depending on the elector’s compliance with the applicable standards.
[282] Since, in principle, the compliant ballot paper, or the vote,
counts in favour of the intended candidate, this is the valid vote; but
the non-compliant ballot paper, or vote, will not count in the tally of
any candidate; it is not only rejected, but is invalid, and confers no
electoral advantage upon any candidate.
[283] In that sense, the rejected vote is void. This leads to the
crucial question in Petition No. 3: why should such a vote, or ballot
paper which is incapable of conferring upon any candidate a numerical
advantage, be made the basis of computing percentage accumulations of
votes, so as to ascertain that one or the other candidate attained the
threshold of 50% + 1 – and so such a candidate should be declared the
outright winner of the Presidential election, and there should be no
run-off election?
[284] We can only answer such a logical question by
adverting to the Judiciary’s mandate as specified in Article 259(1) (d)
of the Constitution: to interpret the Constitution in a manner that
“contributes to good governance”. Beyond that, Article 259 requires an
interpretation that: “(a) promotes [the Constitution’s] principles; 102
purposes, values and “(b) advances the rule of law and the human rights
and fundamental freedoms in the Bill of Rights; “(c) permits the
development of the law......” The instrument of implementation of the
above provisions is the Supreme Court Act, 2011 (Act No. 7 of 2011),
which thus provides in Section 3: “The object of this Act is to make
further provision with respect to the operation of the Supreme Court as a
court of final judicial authority to, among other things – (a) assert
the supremacy of the Constitution and the sovereignty of the people of
Kenya; (b) provide authoritative and impartial interpretation of the
Constitution; (c) develop rich jurisprudence that respects Kenya’s
history and traditions and facilitates its social, economic and
political growth....”
[285] Taking into account the progressive
character of the Constitution, and in particular its declared “national
values and principles of governance” [Article 10], we hereby render the
interpretation that the provision of Article 138(4), “A candidate shall
be declared elected as president if the candidate receives – (a) more
than half of all votes cast in the election; and 103 (b) at least
twenty-five per cent of the votes cast in each of more than half of the
counties” – refers only to valid votes cast, and does not include ballot
papers, or votes, cast but are later rejected for non-compliance with
the terms of the governing law and Regulations. We are, in this regard,
guided by a purposive approach, founded on the overall design and intent
of the Constitution. We respectfully agree, on this point, with the
position taken by the Constitutional Court of Seychelles in Popular
Democratic Movement v. Electoral Commission (see para. 266, supra). (ix)
Possible Reliefs: A “Fresh Election?”
[286] The Attorney-General, as
amicus curiae, invited the Court to give directions on a line of relief
declared by the Constitution, depending on the finding on merits.
Article 138(5) of the Constitution stipulates that if after the hearing
of the Petition, the Court finds no candidate to have been duly elected,
“a fresh election shall be held within thirty days after the previous
election and in that fresh election the only candidates shall be – (a)
the candidate, or the candidates, who received the greatest number of
votes; and (b) the candidate, or the candidates, who received the second
greatest number of votes.”
[287] The expression “a fresh election” appears also in Article
140(3), which thus provides: 104 “If the Supreme Court determines the
election of the President-elect to be invalid, a fresh election shall be
held within sixty days after the determination.” As the phrase “fresh
election,” as used in Article 140(3), does not tally with its
application in Article 138(2) and (3), the amicus curiae sought the
Court’s answer to the following question: “Does the fresh election
anticipated by Article 140(3) mean an entirely new Presidential election
(including the nomination process), or does [it] mean a similar
election as that anticipated under Article 138(5) and (7) – with the
same candidates as in the earlier poll?”
[288] Article 138(4) provides
that a candidate shall be declared elected if the candidate receives:
(a) more than half of all the votes cast in the election; and (b) at
least 25% of the votes cast in each of more than half of the counties.
Article 138(5) provides that if no candidate is elected, a fresh
election shall be held within 30 days following the previous election,
and in this later election the candidates shall be: (a) the candidate,
or the candidates, who received the greatest number of votes; and (b)
the candidate, or the candidates, who received the second greatest
number of votes. Article 138 (6) provides that if more than one
candidate receives the greatest number of votes, then Article 138(5)(b)
shall not apply and the only candidates in the fresh election shall be
those contemplated in Article 138(5)(a). Article 138(7) provides that
the candidate who receives the most votes in the fresh election shall be
declared elected as President.
[289] It is clear that a fresh election
under Article 140(3) is triggered by the invalidation of the election of
the declared President-elect, by the Supreme Court, following a
successful petition against such election. Since such a fresh 105
election is built on the foundations of the invalidated election, it
can, in our opinion, only involve candidates who participated in the
original election. In that case, there will be no basis for a fresh
nomination of candidates for the resultant electoral contest.
[290] Suppose, however, that the candidates, or a candidate who took
part in the original election, dies or abandons the electoral quest
before the scheduled date: then the provisions of Article 138(1) (b)
would become applicable, with fresh nominations ensuing.
[291] Barring
the foregoing scenario, does the “fresh election” contemplated under
Article 140(3) bear the same meaning as the one contemplated under
Article 138(5) and (7)? The answer depends on the nature of the petition
that invalidated the original election. If the petitioner was only one
of the candidates, and who had taken the second position in vote-tally
to the President-elect, then the “fresh election” will, in law, be
confined to the petitioner and the President-elect. And all the
remaining candidates who did not contest the election of the
President-elect, will be assumed to have either conceded defeat, or
acquiesced in the results as declared by IEBC; and such candidates may
not participate in the “fresh election.”
[292] Such, indeed, is the situation in the instant case. It follows
that if this Court should invalidate the election of the 3rd and 4th
Respondents, only the 1st Petitioner would participate as a contestant
in the “fresh election” against the President-elect. And the candidate
who receives the most votes in the fresh election would be declared
elected as President.
[293] But suppose a successful petition
challenging the President-elect were filed by more than one candidate
who had participated in the original 106 election. The only candidates
in the fresh election, in such a case, in our opinion, would be the
petitioners as well as the declared President-elect whose election had
been annulled.
[294] Suppose further, that the election of a declared
President-elect is annulled following the petition of a person who was
not a candidate in the original election. In such a case, in our
opinion, each of the Presidential- election candidates in the original
election would be entitled to participate in the “fresh election” – and
no fresh nominations would be required. K.
DETERMINATION OF THE
PETITIONS
[295] The evidence in the consolidated Petition has been laid
out in detail, and is the primary basis for disposing of the several
prayers. The Court has also considered various questions of law and of
general constitutional principle, upon which the Petitioners rely in
their prayers. As such broader foundations to the cases concerned
specific prayers, and as the relevant issues were squarely canvassed by
counsel, we were able to make our findings, and embody the same at
various stages in this Judgment.
[296] But, ultimately, the primary
issue is the claim made by the Petitioners in Petitions No. 4 and No. 5;
and these resolve into the issue in Petition No. 5, namely: Must the
certificate of election as President-elect, issued to the 3rd
Respondent, be cancelled; and should an Order be made for a fresh
Presidential election to take place in Kenya?
[297] The evidence laid before the Court has to be considered on the
basis of relevant principles of law. From the case law, it is clear that
an alleged wrong 107 in the electoral process cannot be rectified on
the basis of the conventional yardsticks of civil or criminal law. In
criminal law, proof must be “beyond any reasonable doubt”, as the
liberties of the subject are at stake and, failing absolute proof, an
accused person must be set at liberty. By contrast, in civil law, which
is private matter between two individuals, a wrong only needs to be
proved on a balance of probability.
[298] An alleged breach of an
electoral law, which leads to a perceived loss by a candidate, as in the
Presidential election which has led to this Petition, takes different
considerations. The office of President is the focal point of political
leadership, and therefore, a critical constitutional office. This office
is one of the main offices which, in a democratic system, are
constituted strictly on the basis of majoritarian expression. The whole
national population has a clear interest in the occupancy of this office
which, indeed, they themselves renew from time to time, through the
popular vote.
[299] As a basic principle, it should not be for the Court to
determine who comes to occupy the Presidential office; save that this
Court, as the ultimate judicial forum, entrusted under the Supreme Court
Act, 2011 (Act No. 7 of 2011) with the obligation to “assert the
supremacy of the Constitution and the sovereignty of the people of
Kenya” [s.3(a)], must safeguard the electoral process and ensure that
individuals accede to power in the Presidential office, only in
compliance with the law regarding elections. [300] It follows that this
Court must hold in reserve the authority, legitimacy and readiness to
pronounce on the validity of the occupancy of that office, if there is
any major breach of the electoral law, as provided in the Constitution
and the governing law. 108
[301] We take judicial notice that Kenya, thanks to the
relentlessness of the people’s democratic struggles, has recently
enacted for herself the current Constitution, which assures for every
citizen an opportunity for personal security and for self-actualization
in a free environment. The Judiciary in general, and this Supreme Court
in particular, has a central role in the protection of that Constitution
and in the realization of its fruits so these may inure to all within
our borders; and in the exercise of that role, we choose to keep our
latitude of judicial authority unclogged: so the Supreme Court may be
trusted to have a watchful eye over the play of the Constitution in the
fullest sense. Even as we think it right that this Court should not be a
limiting factor to the enjoyment of free political choices by the
people, we hold ourselves ready to address and to resolve any grievances
which flow from any breach of the Constitution, and the laws in force
under its umbrella.
[302] It is in this context that we have given careful consideration
to the special facts of the instant case. We have set out the facts in
detail, so these may show us how the grievances arose, and what
electoral problem there has been. We moved suo motu to have a
re-tallying of some of the data generated in the Presidential-election
proceedings. [303] We came to the conclusion that, by no means can the
conduct of this election be said to have been perfect, even though,
quite clearly, the election had been of the greatest interest to the
Kenyan people, and they had voluntarily come out into the polling
stations, for the purpose of electing the occupant of the Presidential
office. [304] Did the Petitioner clearly and decisively show the conduct
of the election to have been so devoid of merits, and so distorted, as
not to reflect 109 the expression of the people’s electoral intent? It
is this broad test that should guide us in this kind of case, in
deciding whether we should disturb the outcome of the Presidential
election.
[305] We have already considered the foundations of the main
grievance: as regards the acquisition of electronic technology for the
electoral process; with regard to the partial employment of such
technology, before reverting to the manual process; as regards the
maintenance of a Voter Register; and in relation to the tallying of
votes. Firstly, we have considered the extent to which any breach of the
law would have been occasioned in the several areas of operation, and
whether such, would disclose reprehensible conduct having the effect of
negating the voters’ intent.
[306] Secondly, we have considered the evidence which came by way of
depositions, and which was vigorously canvassed by the parties. In
summary, the evidence, in our opinion, does not disclose any profound
irregularity in the management of the electoral process, nor does it
gravely impeach the mode of participation in the electoral process by
any of the candidates who offered himself or herself before the voting
public. It is not evident, on the facts of this case, that the candidate
declared as the President-elect had not obtained the basic
vote-threshold justifying his being declared as such. [307] We will,
therefore, disallow the Petition, and uphold the Presidential- election
results as declared by IEBC on 9th March, 2013. [308] Each of the
parties coming before us has sought orders as to costs. This, of course,
is an adversarial system of litigation; and therefore, parties will
invariably be asking for costs, at the conclusion of a matter such as
this. 110
[309] Yet we have to take into account certain important
considerations, in relation to costs. It is already clear that the
nature of the matters considered in a Presidential-election petition is
unique. Although the petitions are filed by individuals who claim to
have moved the Court in their own right, the constitutional issues are
of a public nature – since such an election is of the greatest
importance to the entire nation.
[310] Besides, this is a unique case, coming at a crucial historical
moment in the life of the new Kenyan State defined by a new
Constitution, over which the Supreme Court has a vital oversight role.
Indeed, this Court should be appreciative of those who chose to come
before us at this moment, affording us an opportunity to pronounce
ourselves on constitutional questions of special moment. Accordingly, we
do not see this instance as just another opportunity for the regular
professional-business undertaking of counsel.
[311] We do, however, greatly appreciate the outstanding contribution
of all counsel appearing before us in these historic proceedings. We
acknowledge them for their ingenuity and enterprise, in urging before us
the vital questions of law and evidence. L. ORDERS [312]
In unanimity on the matters brought before us in these proceedings,
we make orders as follows: 1. Petition No. 5 of 2013 in the Consolidated
Petitions be and is hereby dismissed. 111 2. Petition No. 4 of 2013 in
the Consolidated Petitions be and is hereby dismissed. 3. Petition No. 3
of 2013 in the Consolidated Petitions, and with regard to the prayer
for Orders for the re-computation of vote-tally percentages by the 2nd
Respondent, is declined, for want of jurisdiction. 4.
Each party shall bear their own costs.
DATED and ISSUED at NAIROBI
this...........day of ......................, 2013.
.......................................... W.M. MUTUNGA CHIEF JUSTICE
& PRESIDENT SUPREME COURT
............................................. M.K. IBRAHIM JUSTICE OF
THE SUPREME COURT ...................................................
S.C. WANJALA JUSTICE OF THE SUPREME COURT
.............................................. P.K. TUNOI JUSTICE OF THE
SUPREME COURT ................................................. J.B.
OJWANG JUSTICE OF THE SUPREME COURT
............................................ N.S. NDUNGU JUSTICE OF THE
SUPREME COURT 112 I certify that this is a true Copy of the original
REGISTRAR SUPREME COURT OF KENYA 113
